Kaur, R (on the application of) v Secretary of State for the Home Department

By a letter and a Notice of Decision dated 2^nd May 2013 the Secretary of State for the Home Department (“the SSHD”) refused an application by Mrs Paramjit Kaur (“Mrs Kaur”) for leave to remain in the United Kingdom. The reasons for the refusal which the SSHD gave at that time were later supplemented in a further letter dated 25^th April 2014. Mrs Kaur applied for judicial review of the SSHD’s decision. Her claim was heard on 28^th January 2015 by Alexandra Marks, sitting as a Deputy High Court Judge, who quashed the SSHD’s decision as irrational and unreasonable. The SSHD now appeals against the decision of the Deputy Judge.

The appeal was for a time stayed to await the decision of the Supreme Court in R (Agyarko) v SSHD [2017] UKSC 11, [2017] 1 WLR 823. The stay was lifted following the decision in Agyarko in March 2017. The appeal was then listed to be heard in November 2017, but unfortunately it became necessary to vacate that date.

The relevant facts can be summarised as follows. Mrs Kaur, a national of India, is now 58 years old. On 16^th January 1983, in India, she married Mr Gurinder Singh (“Mr Singh”), who is also now aged 58. They have a daughter now aged 34, and a son now aged 30, both of whom have been resident in this country for some years, and both of whom have children of their own.

Mr Singh came to this country in January 1997, initially with leave to enter as a visitor, and has remained here since that time. Mrs Kaur and the children stayed in India. Between 1997 and 2006, Mrs Kaur came to the United Kingdom as a visitor on about four occasions each year, returning to India after each visit. On her last such visit, she entered the country on 10^th December 2006 with leave which expired on 10^th June 2007. She has remained unlawfully in this country since that date.

Mr Singh initially made an asylum claim, which was unsuccessful. He nonetheless remained unlawfully in this country, and in about 2010 he made an application to the SSHD for leave to remain under the Legacy Scheme. This court has not been provided with a copy of his initial application. There is no clear evidence that it included any formal application on behalf of his wife, and the SSHD’s case has throughout been that it did not. The court has however been provided with copy correspondence from which it is apparent that, in late 2010, Mr Singh did make a written request to include his wife, son, daughter and grandson in his application. He did so in his reply to a letter dated 8^th November 2010 from the UK Border Agency asking him to provide information including a copy of the marriage certificate, the duration of his cohabitation with his wife, when and where they met, when they commenced a relationship and when they decided to marry. However, notwithstanding Mr Singh’s provision of that information and his making of that request, the only application which the SSHD had to consider, and did consider, was his application. On 23^rd March 2011 Mr Singh was granted indefinite leave to remain, but no such grant was made to Mrs Kaur. On 4^th July 2013 Mr Singh became a naturalised British citizen.

In February 2012 solicitors wrote to the SSHD on Mrs Kaur’s behalf asking why her claim had not been considered. It is not clear whether the solicitors thought that a formal application for leave to remain had in fact been made by Mrs Kaur in 2010 or 2011. No documentation has been provided to this court unequivocally showing that she did. It seems probable that the solicitors were referring to the correspondence in which Mr Singh had expressed a wish for his wife and other members of his family to be included in his application.

Thereafter, Mrs Kaur undoubtedly did make a formal application for leave to remain. She did so by a letter dated 7^th February 2013, in which the solicitors acting on her behalf stated that she sought leave to remain –

An application form was also completed by Mrs Kaur or on her behalf, but it is not suggested in this appeal that it added anything of substance to the matters mentioned in the solicitors’ letter.

As I have indicated, the SSHD gave her decision on 2^nd May 2013: about two months before Mr Singh became a British citizen. She did so in a letter which enclosed, and referred to, a Notice of Decision. I have no doubt that the two documents must be read together. Summarising their contents, the SSHD addressed the provisions of the Immigration Rules pursuant to which Mrs Kaur had applied for leave to remain. The SSHD stated that Mrs Kaur had no family life with her daughter which would be relevant to her Article 8 rights, because the daughter was married and living an independent life. The relevant family life was therefore that of Mrs Kaur with Mr Singh. The SSHD acknowledged that Mr Singh’s Article 8 right to a family life must also be considered. So far as Mr Singh was concerned, the letter said that Mr Singh had lived in India until he was 38 years old and that the SSHD was satisfied that he could readapt to life in India. It was therefore reasonable to expect Mrs Kaur and Mr Singh to continue their family lives and private lives outside of the United Kingdom:

The solicitors representing Mrs Kaur responded to that decision with a pre-action protocol letter. The claim for judicial review was then issued on 2^nd August 2013, and permission to apply was granted on 27^th January 2014.

On 25^th April 2014 the SSHD sent a supplemental letter, to be read in conjunction with the original decision of 2^nd May 2013. In relation to Rule 276ADE, the letter noted that Mrs Kaur was 53 years old when she made her application and had spent only 7 years of her life continuously in the UK. It was therefore considered that she had stronger ties to India than to the UK. The letter further noted that Mrs Kaur volunteered at a local Sikh temple, and went on to say –

As to whether there were exceptional circumstances, such as to justify a grant of leave outside the Rules, the letter defined that term as meaning circumstances in which refusal would result in unjustifiably harsh consequences for Mrs Kaur or her family, such that refusal of leave would not be proportionate. It noted that Mrs Kaur had been living in this country unlawfully since 2007. The length of time she had spent in the UK was not considered exceptional. Although reference had been made by Mrs Kaur to a diagnosis of Type 2 diabetes, there was no evidence as to the date of that diagnosis or as to any necessary medication, and in any event the condition was not life-threatening and could be treated in India. It was not considered that her circumstances were exceptional, and the refusal of leave to remain would not result in unjustifiably harsh consequences for her. Having reviewed the decision to refuse Mrs Kaur’s application, the SSHD was satisfied that it was correct and therefore maintained that decision.

The Immigration Rules have been amended since the date of the SSHD’s decision in this case. At the material time, the Rules relevant to this appeal – paragraph 276ADE and Appendix FM - were in the following terms.

Paragraph 276ADE, so far as material, provided –

The meaning of the phrase “no ties”, in sub-paragraph (vi), was considered by Blake J and UT Judge O’Connor in the Upper Tribunal’s decision in Ogundimu v SSHD [2013] UKUT 60 (IAC). The Upper Tribunal held that the phrase imports a continued connection to the life of a country, something that ties a claimant to his or her country of origin. The test under the Rules is an exacting one. Consideration of whether a person has no ties to a country must involve a rounded assessment of all the relevant circumstances, and is not limited to social, cultural and family circumstances. At paragraph 125 it was said:

The facts were very different in R (Bailey) v SSHD [2014] EWHC 1078 (Admin), where the claimant had spent most of her formative years in Uganda, had come to the UK in her twenties and had only been here for about 8 years. Andrews J said:

The Ogundimu approach was approved by this court in CG (Jamaica) v SSHD [2015] EWCA Civ 194 (in which the court pointed out that a person may have close ties with another state even though there is little or no prospect of his receiving support in that state), R (Akpan) v SSHD [2015] EWCA Civ 1266 and Herrera v SSHD [2018] EWCA Civ 412. In Akpan, Sales LJ said at paragraph 25:

Appendix FM to the Immigration Rules set out, amongst other things, the conditions of eligibility for limited leave to remain as a partner:

In MF (Nigeria) v SSHD [2013] EWCA 1192, [2014] I WLR 544 this court held that it would be contrary to Article 8 to interpret “insurmountable obstacles” as meaning obstacles which are literally impossible to surmount.

In R (Nagre) v SSHD [2013] EWHC 720 (Admin) Sales J (as he then was) observed that the Immigration Rules do not cover every conceivable case in which a foreign national may have a good claim for leave to remain under article 8. By way of example in relation to paragraph 276ADE he said:

Cranston J, sitting with UT Judge Taylor in the Upper Tribunal, neatly summarised the effect of the latter two decisions at paragraph 24(c) of his judgment in SSHD v Gulshan [2013] UKUT 00640 (IAC):

Earlier in the judgment, the Upper Tribunal had referred to the SSHD’s Guidance to decision-makers considering a claim of insurmountable obstacles under the Rule. That Guidance indicated that even a significant degree of hardship or inconvenience did not amount to an insurmountable obstacle, and that the focus should be on the family life to be enjoyed in the country to which an applicant would be returned and not on a comparison to the life the family would be able to enjoy if allowed to remain in the UK.

Since the decision of the Deputy Judge in this case, the meaning of “insurmountable obstacles” has been definitively stated by the Supreme Court in Agyarko. Lord Reed, with whom the other Justices of the Supreme Court agreed, referred to Jeunesse v The Netherlands (2015) 60 EHRR 17, GC, saying:

Lord Reed went on to refer, at paragraph 44, to the fact that the July 2012 version of the Rules (which was applicable in that case, and is applicable in this) did not define the expression “insurmountable obstacles”. With effect from July 2014, however, Appendix FM was amended by the addition of paragraph EX.2, which states –

Lord Reed concluded that that definition was consistent with the meaning given to the phrase by the decisions of the European Court of Human Rights. He therefore concluded that the meaning of the phrase under the 2012 version of the Rules was the same as it is now under paragraph EX.2. He continued:

Having considered the nature of the Rules and the Instructions given by the SSHD as to their application, Lord Reed concluded that they are compatible with Article 8, though of course a specific application of the Rules and instructions to the facts of a particular case may be open to challenge as incompatible with Article 8. He then went on to consider the case of an applicant whose immigration status is precarious:

I refer to Chikwamba v SSHD [2008] UKHL 40 later in this judgment.

The claim for judicial review challenged the SSHD’s decision of 2^nd May 2013 and in particular contended that removal of Mrs Kaur to India would breach her human rights and the human rights of her family. The grounds for judicial review contended that the SSHD, in what was said to be “the short and inadequate” notice of decision, had failed to give proper weight to a number of matters: Mrs Kaur’s strong family and private life established in the UK; the status of Mr Singh as a British citizen, and the negative impact upon him of the refusal of leave to remain for Mrs Kaur; Mr Singh’s established life and work record in the UK; the need to apply a common sense approach to Mrs Kaur’s application for leave to remain; the evidence of Mrs Kaur’s circumstances in India, as indicated in the letter of 7^th February 2013; and the fact that Mrs Kaur had lost all social, cultural and family ties to India. Although additional points were initially advanced, by the time of the hearing before the Deputy Judge the claim was put on three grounds, namely that the SSHD had –

erred in concluding that there were no insurmountable obstacles to Mrs Kaur and Mr Singh continuing their family and private life outside the UK;

erred in concluding that Mrs Kaur did not meet the requirements of paragraph 276ADE(vi);

failed properly to assess whether Mrs Kaur’s circumstances were exceptional, such that she should have been granted leave to remain outside the Rules.

The SSHD’s Detailed Grounds of Defence responded to the submissions made on Mrs Kaur’s behalf and submitted that judicial review should be refused.

In her judgment given on 28^th January 2015, the Deputy Judge summarised the submissions made on each side as to the three principal issues, which for convenience I shall refer to as the insurmountable obstacles issue, the no ties issue and the exceptional circumstances issue. The Deputy Judge, without making any specific finding, acknowledged there may not have been any application made on behalf of Mrs Kaur in 2010 “although there may have been a misconception by both Mr Singh and Mrs Kaur in that respect”. She referred to the relevant Immigration Rules, which I have quoted above. She referred to the case law which had been cited to her. She observed that there was no disagreement between the parties as to the test to be applied in relation to exceptional circumstances: it was as stated in Shahzad (Pakistan) [2014] UKUT 85 (IAC), namely –

With every respect to the Deputy Judge, it seems to me that in parts of her judgment she overlooked the fact that the decision letter of the 2^nd May 2013 referred to the enclosed Notice, and she criticised the SSHD for failing to refer to a particular point in one of those documents when it had been dealt with in the other document. However, I do not think that anything turns on that, and the Deputy Judge’s reasons can be read as applying to both documents collectively. She reached the following conclusions.

In relation to the insurmountable obstacles issue, the judge quoted the reference in the decision letter to “a degree of hardship and inconvenience”. She said that –

As to the no ties issue, the Deputy Judge referred to Ogundimu. She observed that in the decision letters and Notice of Decision the SSHD had not expressly considered Mrs Kaur’s family and social ties in India, which she described as

The Deputy Judge therefore found that the SSHD’s decision on this issue was flawed because she had failed to give adequate reasons for the conclusion that Mrs Kaur had lost all ties to her country of origin, had failed to make a rounded assessment of all relevant circumstances, and, by referring only to linguistic and cultural ties of the claimant, had omitted to refer to any consideration to factors such as social or family ties.

As to the exceptional circumstances issue, the Deputy Judge concluded that the SSHD had directed herself correctly in this regard, and was not in error, or irrational, in her finding that there were no exceptional circumstances.

The Deputy Judge accordingly found for the SSHD on the exceptional circumstances issue, but granted the claim for judicial review, and quashed the SSHD’s decision, because of the flawed treatment of the insurmountable obstacles and no ties issues.

The SSHD advances five grounds of appeal against the Deputy Judge’s decision. First, that the judge was wrong to conclude that the SSHD had failed to give proper consideration to the insurmountable obstacles issue. It is submitted that Mrs Kaur had failed to provide sufficient evidence to demonstrate that there were any insurmountable obstacles. Secondly, the judge was wrong to say that the SSHD’s decision was flawed because it did not take into account Mr Singh’s inability to find work in India: that matter had not been raised in the judicial review pleadings. Thirdly, the judge had failed to appreciate that the insurmountable obstacles test sets a high threshold, had wrongly applied a test of whether it was “practicably possible” for Mr Singh to return to India, and had wrongly focused on Mr Singh’s life in the UK or in India rather than on the comparison between the family life in India and the family life in the UK. Fourthly, the judge was wrong to find that the SSHD had failed to take into account the lack of Mrs Kaur’s family or social ties to India. The SSHD was correct to focus on the wider circumstances, including the fact that Mrs Kaur had lived in India until the age of 46 and, in this country, continued to be connected to Indian language and culture amongst the Indian community in the area where she is living. Lastly, the judge had erred in law in her approach to the no ties issue, by wrongly carrying out a balancing exercise between the respective ties to the UK and to India of Mrs Kaur, and had failed to recognise the high threshold set by the exacting test.

By a Respondent’s Notice filed on 13^th April 2018, and therefore well over three years outside the time limit prescribed by the CPR, Mrs Kaur seeks to uphold the judge’s decision for the reasons which the judge gave, and/or for three additional reasons: first, that in the light of recent case law – in particular, Agyarko and MM (Lebanon) v SSHD [2017] UKSC 10 - the SSHD took an incorrect approach to the assessment of exceptional circumstances; secondly, that in assessing proportionality, the SSHD failed to take into account her own delay in issuing a decision upon the initial claim that Mrs Kaur should have leave to remain; and thirdly, that applying the ratio in Chikwamba the SSHD should have found that there were exceptional circumstances justifying a grant of leave to remain. The necessary long extension of time for filing that Notice was granted on 23^rd April 2018 on the basis that no objection had been filed by the SSHD within the time limit stipulated.

Mr O’Brien submits that the SSHD did not receive the letter from the court inviting any objection to the application for an extension of time. That is unfortunate, and I do not doubt that the SSHD would have put forward objections if the letter had been received and considered. The fact is, however, that no objections were raised within the time limit, and no subsequent application has been made to set aside the grant of the extension of time.

There is however a separate issue – to which I return below - as to the application on behalf of Mrs Kaur for permission to rely on fresh evidence in support of matters raised in her Respondent’s Notice. The application relates to a bundle of documents provided by the SSHD in response to a Subject Access Request made in late March 2018 by Mrs Kaur’s solicitors. Mr Saini, for Mrs Kaur, submits this is relevant to the issue of unreasonable delay in making a decision on Mrs Kaur’s initial application, and to the question raised by Chikwamba as to whether an application for entry clearance made by Mrs Kaur from outside the UK would have been successful. He argues that the documents are documents which the SSHD should in any event have disclosed. Mr O’Brien resists that application, contending that the documents have only become relevant (if at all) as a result of a matter raised by Mrs Kaur very late in the appeal proceedings, and that the application should be refused on Ladd v Marshall principles because the evidence would have been available at the time of the hearing before the Deputy Judge if Mrs Kaur’s representatives had made their Subject Access Request at that time.

In Chikwamba, the SSHD’s policy, as recorded in her Asylum Policy Instruction, Consideration of Article 8 Family Life Claims, was that in cases where there was a procedural requirement under the Rules requiring a person to leave the UK and make an application for entry clearance from outside the UK, such a person should return home and make an application for entry clearance from there:

Lord Brown, with whom the other Law Lords agreed, accepted that it would in some cases be reasonable and proportionate to follow that policy. He went on, however, to say at paragraph 44:

It must however be noted that the facts in Chikwamba were striking. The claimant was a Zimbabwean national. In June 2002 her asylum claim and leave to enter were refused. Her removal was however suspended because of deteriorating conditions in Zimbabwe. She then married a Zimbabwean man who had earlier been granted asylum in this country, and in April 2004 a daughter was born to them. In November 2004 the bar on forced removals to Zimbabwe was lifted. The claimant appealed against the Secretary of State’s refusal of her claim that removal to Zimbabwe would breach her Article 8 right to respect for her family life. The issue was whether she should be required to return to Zimbabwe in order to apply from there for permission to rejoin her husband. It was accepted that he could not return to Zimbabwe. It was found by the adjudicator that conditions in Zimbabwe would be “harsh and unpalatable”. The facts were such that the claimant would have “every prospect of succeeding” if she made an application from Zimbabwe for permission to re-enter and remain in this country. However, if the claimant had to return to Zimbabwe her child would either have to face those unpalatable conditions for a time, or be separated from her mother. In those circumstances, Lord Brown said at paragraph 46:

I note that in Hayat v SSHD [2011] UKUT 444 (IAC), Upper Tribunal (Lord Menzies and UT Judge PR Lane, as he then was) said:

I have quoted in paragraph 26 above the passage in which Lord Reed (at paragraph 51 of his judgment in Agyarko) referred to Chikwamba. It is relevant to note that he there spoke of an applicant who was “certain to be granted leave to enter” if an application were made from outside the UK, and said that in such a case there might be no public interest in removing the applicant. That, in my view, is a clear indication that the Chikwamba principle will require a fact-specific assessment in each case, will only apply in a very clear case, and even then will not necessarily result in a grant of leave to remain.

I am grateful to both counsel for their written and oral submissions, which I summarise as follows.

On the insurmountable obstacles issue, Mr O’Brien submits that Mrs Kaur had failed to provide sufficient evidence to show that there were any insurmountable obstacles to her continuing her family life with Mr Singh in India, and that the Deputy Judge was therefore wrong to conclude that the SSHD had failed properly to consider this issue. The evidence was principally concerned with the life of Mrs Kaur and Mr Singh in the UK, with particular reference to the length of time Mr Singh has been in this country and his status as a British citizen, and Mrs Kaur’s solicitors had not put forward evidence of insurmountable obstacles to family life being continued in India. The specific assertion that Mr Singh would be unable to work in India, and that he and Mrs Kaur would therefore be unable to support themselves, had not been pleaded in the judicial review proceedings (it was first raised in the pre-action protocol letter), and was in any event not backed up by any evidence: the evidence related to Mr Singh’s employment position in this country, and was silent as to his ability to support himself and his wife in India, whether by working or by relying on a pension from his UK employment. The test in paragraph EX.1 sets a high threshold, and the Deputy Judge wrongly focused on whether a return to India was practically possible instead of considering whether there were any insurmountable obstacles to it.

Mr Saini’s overriding submission is that the SSHD had failed to provide sufficient reasons for her adverse decision on Mrs Kaur’s application, and that the Deputy Judge was entitled, and correct, to conclude that the decision was flawed. He submits on this issue that although the hearing of the judicial review preceded the decision of the Supreme Court in Agyarko, the Deputy Judge approached the issue of insurmountable obstacles in a manner consistent with that decision. He submits that the SSHD failed to answer the specific insurmountable obstacles which Mrs Kaur’s solicitors had raised: the practical possibilities of a return to India required to be considered, but the SSHD’s decision showed no reasoning on the issue.

On the no ties issue, Mr O’Brien submits that the Deputy Judge was wrong to assume, from the absence of specific reference, that the SSHD’s decision was taken without any consideration of Mrs Kaur’s assertion that she had no family or social ties in India. The SSHD was entitled to look at the wider picture, including the length of time Mrs Kaur had lived in India and her continuing contact with Indian language and culture, and to conclude that Mrs Kaur had not shown that she had no ties to that country. The Deputy Judge had failed to apply the exacting test which paragraph 276ADE(vi) imposes, and had wrongly approached the issue by balancing the ties of Mrs Kaur to the UK and to India respectively.

Mr Saini submits that, in undertaking the rounded assessment required by the Rule (as explained in Ogundimu) the SSHD was plainly required to consider Mrs Kaur’s lack of family and social ties to India, but – as the Deputy Judge correctly found - had failed to do so. Mrs Kaur’s worship and voluntary work at a Sikh temple in Southall could not show any continued connection to India. The Deputy Judge had made an evaluative judgment and rounded assessment of all relevant factors as required by Ogundimu, Akpan and Herrera, was plainly aware that the test is an exacting one, and was entitled and correct to reach the conclusions she did.

As to the matters raised in the Respondent’s Notice, Mr Saini submits that the Deputy Judge’s decision should additionally be upheld because the SSHD adopted an unlawful approach to her assessment of the exceptional circumstances issue. The recent decisions of the Supreme Court in Agyarko and MM (Lebanon) show that the test of exceptional circumstances requires a proportionality assessment rather than a search for some compelling or exceptional reason. In addition, Mr Saini seeks to rely on fresh evidence which he submits would support the argument that the SSHD failed to consider Mrs Kaur’s Legacy Scheme claim in 2011, and that such delay should have been taken into account by the SSHD when deciding whether there were exceptional circumstances justifying a grant of leave to remain outside the Rules. He particularly relies on Lord Reed’s observations at paragraph 52 of his judgment in Agyarko, which I have quoted at paragraph 26 above. Finally, Mr Saini submits that the SSHD should have considered Chikwamba, and should have decided that Mrs Kaur would be certain to be granted leave to enter if she made an application from abroad, and that accordingly there was no public interest in removing her.

Mr O’Brien submits that this is a case concerned with precarious family life, and relies on observations of Lord Reed at paragraphs 56-57 of Agyarko, which I quote below. He accepts that a proportionality exercise requires a fair balancing of considerations, but submits that there are here no factors which are sufficiently strong or compelling to outweigh the public interest in immigration control. He denies that Mrs Kaur made a Legacy Scheme application. He resists the admission of the fresh evidence, as I have indicated at paragraph 40 above, and submits that this court should not endeavour now to carry out a hypothetical entry clearance exercise to determine whether an out of country application by Mrs Kaur would have succeeded at the material time.

In relation to both the insurmountable obstacles issue and the no ties issue, it is in my view important to keep in mind the paucity of evidence and information provided by Mrs Kaur in support of her application for leave to remain. At paragraph 7 above, I have quoted or summarised the material passages in the letter of 7^th February 2013 by which her solicitors put forward her application. Those passages contained the matters which Mrs Kaur relied upon in support of her application, and which the SSHD was required to consider in making a decision as to whether to grant the application.

Mrs Kaur’s application asserted that there were insurmountable obstacles to family life continuing outside the UK because Mr Singh had established a life in this country over many years, had acquired British citizenship, had worked and contributed to society, and could not reasonably be expected to return to India. It also asserted that Mrs Kaur had integrated herself into British society and did not have any means of support in India. The evidence in support of those assertions was however limited to features of the lives of Mrs Kaur and Mr Singh in the UK, and it seems to me that no real attempt was made to provide a foundation for the assertions that there were insurmountable obstacles to their family life in India. Nothing was put forward in support of the assertion that Mrs Kaur would have no means of support in India. That was in my view a significant omission. In the circumstances of this case, Mrs Kaur could and should have explained where she had lived and how she had supported herself and her children in India after Mr Singh came to this country, and why her situation would be different if she now had to return. Nor was any attempt made to explain what the financial position of the couple would be if they returned to India; again a significant omission, when on the face of it Mr Singh (even if it were correct that he could not obtain work) would have a pension from his employment in this country. If the details of these matters were clearly in Mrs Kaur’s favour, her solicitors should have had no difficulty in explaining them. If the full picture was rather more complicated than her solicitors’ letter suggested, then Mrs Kaur cannot complain that her assertion of an inability to support herself in India was not considered sufficient to establish an insurmountable obstacle.

With every respect to the Deputy Judge, she was in my judgment wrong in those circumstances to criticise the SSHD for failing to consider matters which had not been sufficiently raised by Mrs Kaur in her application. Moreover, in focusing upon the practical possibilities of a return to India, it seems to me that the Deputy Judge rather lost sight of the stringent requirement of paragraph EX.1 that an applicant in Mrs Kaur’s position must show insurmountable obstacles to family life continuing outside the UK. Of course, the Deputy Judge did not have the advantage of the clarification of the law by the decision in Agyarko. She was correct to take the approach that it was not necessary for Mrs Kaur to show obstacles which were literally impossible to surmount; but she was in error if she thought that the reference in Gulshan to “the practical possibilities of relocation” was intended to water down the test of insurmountable obstacles to the point where a mere practical difficulty would suffice.

In any event, the correct approach has now been clarified by Agyarko, and it is in my judgment clear that the Deputy Judge did not consider whether Mrs Kaur and Mr Singh would face very serious difficulties which could not be overcome or would entail very serious hardship. If she had considered that issue, she would surely have concluded that the matters put forward by Mrs Kaur could not suffice to show insurmountable obstacles to her continuing her family life with her husband in India. The matters put forward certainly provided good reasons why both would much prefer to continue their family life in this country; but they did not come close to establishing any insurmountable obstacle which would meet the stringent test in paragraph EX.1(b). In the recent case of R (Mudibo) v SSHD [2017] EWCA Civ 1949 this court has emphasised the distinction, in this context, between evidence and mere assertion. The facts and decision in Jeunesse, referred to by Lord Reed in the passages which I have quoted above, show how high the bar is set.

It follows that in my judgment, the SSHD’s first ground of appeal succeeds: Mrs Kaur had not put forward anything more than a bare and insufficient assertion of insurmountable obstacles, and the Deputy Judge was wrong to find that the SSHD’s decision was vitiated by a failure to give proper consideration to this issue. It was not irrational or unreasonable for the SSHD to decide that there were no insurmountable obstacles to Mrs Kaur and Mr Singh continuing their family life in India.

To the extent that the Deputy Judge based her decision on the claim that Mr Singh could not work in India, she was in my judgment wrong to do so, for two reasons: first, because that was not a matter which had been relied upon in the pleaded grounds for judicial review; and secondly, because in any event this was again a matter of assertion by Mrs Kaur, with no attempt to provide any evidence in support of it. The second ground of appeal therefore also succeeds.

The third ground of appeal also succeeds because the Deputy Judge, without the assistance of Agyarko, adopted an incorrect approach which failed to recognise the high threshold set by paragraph EX.1(b) and failed to consider whether Mrs Kaur had shown any very serious difficulties which either could not be overcome or would entail very serious hardship.

Turning to the no ties issue, it seems to me important to begin by stepping back and considering Mrs Kaur’s position at the time of her application for leave to remain. She was then aged 53, and had been in the UK continuously for a little over 6 years since December 2006. She had lived in India for the whole of her childhood and adult life until her late forties, and had borne and raised her children there. For nearly a decade between 1997 and 2006 she had been a frequent visitor to the UK but had continued to live in India with her children despite the absence of her husband. Yet within 6 years of her taking up unlawful residence in this country, she was asserting that she had no ties to her home country. On the face of it, that was a surprising assertion. What had happened to her extended family, her friends and her neighbours in her former home? Had she completely turned her back on everything to do with India? Had she, in such a comparatively short period of her life, become a stranger to that country?

True it is that by the time of her application Mrs Kaur’s immediate family – her husband, children and grandchildren – were all living in the UK; but as to her extended family, Mrs Kaur’s application stated only that her mother-in-law had recently died and she had no remaining family ties in India. She had not explained what family she had previously had in India, or what had become of them. She had said nothing at all about friends in India. I have quoted at paragraph 15 above the list of considerations suggested by the Upper Tribunal at paragraph 125 of the judgment in Ogundimu. It is in my view clear that the solicitors’ letter of 7^th February 2013 did not contain anything which could put Mrs Kaur in a strong position in relation to those considerations.

Although Mr Saini is critical of the SSHD’s reference to Mrs Kaur’s worship and voluntary work at her local Sikh temple, I do not accept his submission that those matters were irrelevant to the no ties issue. They show that this is not a case in which an applicant for leave to remain has abandoned all links to the language and culture of the country to which she would have to return. On the contrary, she had continued to embrace those links.

In those circumstances, the SSHD was in my view plainly entitled to decide that Mrs Kaur had failed to show that she had lost all ties to India: she had put forward no basis on which it could be said that she had become a stranger to that country. It would have been better if the SSHD had expressed her reasons rather more fully than she did, and it is understandable that the Deputy Judge was critical of the SSHD’s failure to make specific reference to Mrs Kaur’s assertion that she had no social or family ties in India. But once again, it is necessary to keep in mind the matters which Mrs Kaur had put forward and about which the SSHD had to make a decision. In giving her decision, the SSHD indicated that Mrs Kaur’s ties to India were stronger than her ties to the UK, which in my view made it sufficiently clear that the claimed lack of ties to India had been considered and rejected. In those circumstances, the Deputy Judge was in my judgment wrong to find that the SSHD’s decision was unlawful because of a failure to consider Mrs Kaur’s lack of family and social ties to India or because of a failure to give adequate reasons. It follows that in my judgment the fourth ground of appeal succeeds.

Moreover, the no ties test is an exacting one. Its application does not simply involve a balancing of the respective ties to this country and to India, which is a matter for consideration outside the Rules if at all. The question is whether Mrs Kaur has no ties to India, and that question cannot be answered merely by pointing to the fact that her immediate family are all now in this country. With respect to the Deputy Judge, she approached this issue by balancing the ties of Mrs Kaur to the UK and to India respectively, but that was an incorrect approach. The fifth ground of appeal therefore succeeds.

I turn to the exceptional circumstances issue, and to the three matters advanced in the Respondent’s Notice.

The first, based on the clarification of the law by recent decisions of the Supreme Court, is in my view a matter properly raised in the Respondent’s Notice and on which Mrs Kaur is entitled to rely. In my judgment, however, it does not assist her. As I have indicated at paragraph 12 above, the SSHD made her decision on the basis that the test to be applied was whether a refusal of leave to remain would result in unjustifiably harsh consequences for Mrs Kaur or her family, such that it would not be proportionate. It does not seem to me that that test is materially different from the test which Mr Saini submits should be adopted in the light of Agyarko and MM (Lebanon).

In this regard, it is relevant to note what was said by Lord Reed in Agyarko at paragraphs 56-57:

In Mrs Kaur’s case, her relationship and family life with her husband were of course formed long before either of them came to the UK, and so this is not a case of a family life formed when her immigration status was unlawful or precarious. There is however also a strong public interest in maintaining immigration control where an immigrant rejoins a spouse who has earlier been given leave to remain in the UK, but does not take proper steps to obtain the necessary entry clearance or right to remain. A strong or compelling claim is in my view necessary to outweigh that public interest. In the circumstances of this case, and for the reasons given above in discussing the insurmountable obstacles and no ties issues, the SSHD was entitled to conclude that Mrs Kaur had not shown any strong or exceptional claim. The Deputy Judge adopted a correct approach, and was not wrong to reject this aspect of Mrs Kaur’s claim.

The other two matters raised in the Respondent’s Notice – relating to the alleged failure of the SSHD to determine Mrs Kaur’s Legacy Scheme application, and to Chikwamba – seek to rely upon fresh evidence. In addition, the Chikwamba point was not argued below, and is therefore a new issue raised for the first time at a very late stage of the appeal proceedings. It is necessary to begin by considering a procedural issue.

CPR 52CPD.8 requires an appeal notice to be filed by a respondent who seeks to appeal against any part of the order below or seeks a variation of the order. In such a case, permission to appeal is required. In the circumstances of this case, Mrs Kaur is not seeking to appeal against, or vary, the order made by the Deputy Judge: she is putting forward an additional ground on which the Deputy Judge should also have made that order. The provisions of 52CPD.8 therefore do not directly apply. Nonetheless, Mrs Kaur’s wish to argue a new point comes within the broad principle stated, for example, in the following passage from the judgment of Widgery LJ in Wilson v Liverpool Corporation [1971] 1 WLR 302 at p307:

Mrs Kaur is seeking (in relation to Chikwamba) to argue a point which could have been but was not raised below, and in relation to which the court below would have received evidence and made findings of fact. In such circumstances, in accordance with the principle stated in that passage, she requires not only the extension of time which she has obtained but also permission to argue this fresh point. It is relevant to consider what the position would be if the order below had been expressed (as it might have been) in different terms, such that Mrs Kaur would have sought a formal variation of part of it if she succeeded on the new Chikwamba point. In that situation, she would have been required to file an appeal notice in order to raise her new point, and this court would have been able to consider whether permission should be given to argue that new point. It would to my mind be highly unsatisfactory if this court had no control over the raising and arguing of that new point simply because the form of the order made below permits Mrs Kaur to raise the point by way of a Respondent’s Notice rather than an appeal notice. For reasons which will become apparent, I would exercise the court’s discretion to refuse permission to argue this fresh point.

In relation to both the second and third points raised in the Respondent’s Notice, Mr Saini’s submissions are in any event dependent upon this court admitting as fresh evidence the bundle of documents which have very recently been obtained by Mrs Kaur’s solicitors from the SSHD. In my judgment, that application cannot succeed in the light of the Ladd v Marshall principles, for the simple reason that all this material would have been available in the court below if Mrs Kaur had asked for it and had put forward arguments which made its disclosure relevant. Moreover, in relation to the issue whether Mrs Kaur in fact made a Legacy Scheme application, it does not seem to me that anything in the material (which we have considered de bene esse) is capable of providing any cogent evidence in Mrs Kaur’s favour. Further, on the Chikwamba issue, the material raises as many questions as Mr Saini suggests it answers, and this court cannot realistically be expected to find within it all the evidence which would have been needed by the Deputy Judge if she had been asked to consider the prospects of success of a hypothetical out of country application by Mrs Kaur for leave to enter. In short, the proposed fresh evidence was available below; has been raised far too late in the appeal proceedings; and in any event does not appear capable of assisting Mrs Kaur’s case.

I would therefore refuse to admit the fresh evidence and in consequence would reject the second and third points raised in the Respondent’s Notice.

As I have indicated, this appeal relates to the application of rules which have been amended during the lengthy period which has elapsed since the SSHD made the relevant decision. It has been necessary to consider the facts as they existed at the time of the decision, not the facts as they may now be. Whatever sympathy one may feel for the present situation of Mrs Kaur and her husband, the proper application of those rules to those facts leads, in my judgment, to the conclusion that the appeal must succeed and the decision of the Deputy Judge must be set aside. That result may seem harsh, and I recognise that it will no doubt come as a bitter blow to Mrs Kaur and to Mr Singh; but it is the decision to which I feel bound to come.

I agree.

I also agree.