The Secretary of State for the Home Department v Sandeep Mohan Khera

The Secretary of State (“the Appellant”) appeals against the decision of the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) of 7 July 2024 (“the UT Decision”), which allowed the appeal of the Respondent against the refusal of an Entry Clearance Officer (“ECO”) by decision of 6 April 2022 to refuse his entry clearance application (“the ECO Decision”).

Mr Sandeep Mohan Khera, the Respondent to this appeal (“the Respondent”), is from India. He applied for entry clearance to join his wife and son in the UK, both of whom have British nationality. He met the eligibility requirements save for those relating to proof of financial means. He applied for the financial resources of his son to be taken into account instead. In the UT Decision it was held that he was entitled to have recourse to his son’s financial means to prove eligibility and that the refusal of the ECO was therefore unlawful. This was because if he were not granted clearance there was a “mere possibility” that his Article 8 rights (under the European Convention on Human Rights or “ECHR”) (“Article 8 rights”) would be breached.

The appeal concerns the correct interpretation of paragraph GEN 3.1(1)(b) of Appendix FM (“Appendix FM”) of the Immigration Rules (“IR”) which governs when recourse to alternative means of finance is allowed, and, specifically, what is meant by “exceptional circumstances which could render refusal of entry clearance or leave to remain a breach of Article 8 of the European Convention on Human Rights”. The UT held at paragraph [23] that the word “could” should be understood as meaning “a possibility something will occur” and, at paragraph [42], that “mere possibility is enough to satisfy the conditions of GEN 3.1(1)(b)”. The Appellant challenges this interpretation and its application.

For the reasons set out below, I would allow the appeal.

Appendix FM sets out the relevant IR that apply where applicants seek entry clearance to the UK upon the basis of their family life with a qualifying sponsor.

Paragraph GEN 1.1 states the following in respect of Appendix FM:

“…It sets out the requirements to be met and, in considering applications under this route, it reflects how, under Article 8 of the Human Rights Convention, the balance will be struck between the right to respect for private and family life and the legitimate aims of protecting national security, public safety and the economic well-being of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others (and in doing so also reflects the relevant public interest considerations as set out in Part 5A of the Nationality, Immigration and Asylum Act 2002)…”

An applicant for entry clearance must satisfy Eligibility requirements in the IR, paragraph EC-P 1.1:

“EC-P.1.1. The requirements to be met for entry clearance as a partner are that-

(a)

the applicant must be outside the UK;

(b)

the applicant must have made a valid application for entry clearance as a partner;

(c)

the applicant must not fall for refusal under any of the grounds in Section S-EC: Suitability–entry clearance; and

(d)

the applicant must meet all of the requirements of Section E-ECP: Eligibility for entry clearance as a partner.”

The requirements in issue in the Respondent’s case are those in paragraphs E-ECP 3.1 to 3.3. These provisions have been updated since the time of the ECO Decision (including in respect of the income threshold in paragraph E-ECP.3.1(a)). The changes are not material for the purpose of this appeal. The up to date version reads:

“E-ECP.3.1. The applicant must provide specified evidence, from the sources listed in paragraph E-ECP.3.2., of:

(a)

a specified gross annual income of at least £29,000

(b)

specified savings of:

(i)

£16,000; and

(ii)

additional savings of an amount equivalent to 2.5 times the amount which is the difference between the gross annual income from the sources listed in paragraph E-ECP.3.2.(a)-(d) and the total amount required under paragraph E-ECP.3.1.(a); or

(c)

the requirements in paragraph E-ECP.3.3. being met.

E-ECP.3.2. When determining whether the financial requirement in paragraph E-ECP. 3.1. is met only the following sources will be taken into account-

(a)

income of the partner from specified employment or self-employment, which, in respect of a partner returning to the UK with the applicant, can include specified employment or self-employment overseas and in the UK;

(b)

specified pension income of the applicant and partner;

(c)

any specified maternity allowance or bereavement benefit received by the partner in the UK or any specified payment relating to service in HM Forces received by the applicant or partner;

(d)

other specified income of the applicant and partner; and

(e)

specified savings of the applicant and partner.

E-ECP.3.3. The requirements to be met under this paragraph are-

(a)

the applicant’s partner must be receiving one or more of the following -

(i)

Disability Living Allowance; or

(ii)

Severe Disablement Allowance; or

(iii)

Industrial Injuries Disablement Benefit; or

(iv)

Attendance Allowance; or

(v)

Carer’s Allowance; or

(vi)

Personal Independence Payment; or

(vii)

Armed Forces Independence Payment or Guaranteed Income Payment under the Armed Forces Compensation Scheme; or

(viii)

Constant Attendance Allowance, Mobility Supplement or War Disablement Pension under the War Pensions Scheme; or

(ix)

Police Injury Pension; or

(x)

Child Disability Payment (Scotland); or

(xi)

Adult Disability Payment (Scotland); or

(xii)

Carer’s Support Payment (Scotland); or

(xiii)

Pension Age Disability Payment (Scotland); or

(xiv)

Scottish Adult Disability Living Allowance (Scotland); and

(b)

the applicant must provide evidence that their partner is able to maintain and accommodate themselves, the applicant and any dependants adequately in the UK without recourse to public funds.”

Exceptions are set out in paragraphs GEN 3.1 and 3.2 which obviate the need to comply with these financial requirements. The up to date version provides:

“Exceptional Circumstances

GEN.3.1. (1) Where:

(a)

the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1., E-LTRP.3.7. (in the context of an application for limited leave to remain as a partner), E-ECC.2.1., E-ECC.2.5., E-LTRC.2.1., or E-LTRC.2.5. applies, and is not met from the specified sources referred to in the relevant paragraph; and

(b)

it is evident from the information provided by the applicant that there are exceptional circumstances which could render refusal of entry clearance or leave to remain a breach of Article 8 of the European Convention on Human Rights, because such refusal could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child; then

the decision-maker must consider whether such financial requirement is met through taking into account the sources of income, financial support or funds set out in paragraph 21A(2) of Appendix FM-SE (subject to the considerations in sub-paragraphs (3) to (8) of that paragraph).

(2)

Where the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1., E-LTRP.3.7 (in the context of an application for limited leave to remain as a partner), E-ECC.2.1., E-ECC.2.5., E-LTRC.2.1., or E-LTRC.2.5. is met following consideration under sub-paragraph (1) (and provided that the other relevant requirements of the Immigration Rules are also met), the applicant will be granted entry clearance or leave to remain under, as appropriate, paragraph D-ECP.1.2., D-LTRP.1.2., D-ECC.1.1., D-LTRC.1.1., Appendix Adoption of the Immigration Rules.

GEN.3.2. (1) Subject to sub-paragraph (4), where an application for entry clearance or leave to enter or remain made under this Appendix, or an application for leave to remain which has otherwise been considered under this Appendix, does not otherwise meet the requirements of this Appendix or Part 9 of the Rules, the decision-maker must consider whether the circumstances in sub-paragraph (2) apply.

(2)

Where sub-paragraph (1) above applies, the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.

(3)

Where the exceptional circumstances referred to in sub-paragraph (2) above apply, the applicant will be granted entry clearance or leave to enter or remain under, as appropriate, paragraph D-ECP.1.2., D-LTRP.1.2., D-ECC.1.1., D-LTRC.1.1., D-ECPT.1.2. or D-LTRPT.1.2.

(4)

….”

The alternative sources of income that can be taken into account where an applicant satisfies the conditions of GEN 3.1(1) are detailed in Appendix FM-SE, which provides, so far as relevant:

“(2)

Subject to sub-paragraphs (3) to (8), the following sources of income, financial support or funds will be taken into account (in addition to those set out in, as appropriate, paragraph E-ECP.3.2., E-LTRP. 3.2., E-ECC.2.2. or E-LTRC.2.2. of Appendix FM):

(a)

a credible guarantee of sustainable financial support to the applicant or their partner from a third party;

(b)

credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner; or

(c)

any other credible and reliable source of income or funds for the applicant or their partner, which is available to them at the date of application or which will become available to them during the period of limited leave applied for.”

The Respondent is an Indian national, born on 27 July 1972. He and his wife (“Mrs Khera”) married in 1999 and they have one child, a son, born in 2000 (“Mr Khera”). Mrs Khera and Mr Khera are British nationals and they both moved to the UK in 2019, having previously lived together with the Respondent in India. The Respondent remained in India and applied for entry clearance under Appendix FM on 21 October 2021, on the basis of his family life with Mrs Khera, his “partner” for the purposes of the relevant provisions.

It is common ground that the Respondent did not have the financial means necessary to meet the requirement under the relevant rules. He informed the ECO that Mrs Khera was unwell and unable to work. He accepted, therefore, that she also could not meet the minimum income threshold required of a partner under Appendix FM. Instead he sought to rely upon Mr Khera’s income in the UK (which at the time of the application was said to be £26,593 per year).

The Respondent’s application was refused by the ECO Decision of 6 April 2022. This was upon the basis that he did not meet the financial eligibility requirements in paragraphs E-ECP 3.1 to E-ECP 3.4 and did not satisfy the exception in paragraph GEN 3.1(1), allowing him to rely upon Mr Khera’s income. The ECO Decision stated that there were no exceptional circumstances which could or would render a refusal to grant the Respondent entry clearance a breach of rights under Article 8 because it could or would result in unjustifiably harsh consequences for the Respondent or his family.

The Respondent appealed to the First-tier Tribunal (“FtT”). The appeal was heard on 28 October 2022. The appeal was allowed by a decision dated 30 November 2022 and promulgated on 6 December 2022. The FtT found that the refusal would breach the Respondent’s Article 8 rights.

The Secretary of State appealed this decision. On 27 July 2023 the UT held that the FtT had erred in law (in respect of the balancing exercise it had purported to undertake when considering potential breaches of the ECHR) and that its decision should be remade. It is the remade decision which is now under appeal.

The rehearing came before the UT on 19 April 2024. The issue was the interpretation of GEN 3.1(1) and its application to the Appellant. The UT noted that “would”, rather than “could”, was used in GEN 3.2(2). It held at paragraphs [22]-[23] that “could” in GEN 3.1(1) needed to have a distinct meaning and allow for some uncertainty of outcome. It settled on “a possibility something will occur” as the correct understanding of “could” in GEN 3.1(1).

On the facts the UT found at paragraphs [30] – [32] that it was not in dispute that the Respondent and Mrs Khera are “in a genuine and subsisting relationship and would like to continue their relationship in the UK” and that Mrs Khera suffered from a variety of physical problems. However, the UT held that these could be treated in India and Mrs Khera could travel to India, notwithstanding her health conditions.

The UT held at paragraphs [41]-[42] that, if the Respondent’s application for entry clearance was refused, it would not result (nor was likely to result) in “unjustifiably harsh consequences” for the Respondent or Mrs Khera. However, it went on to hold that there was “a possibility that it could do so” (for example if Mrs Khera’s health deteriorated such that she could not travel to India to visit the Respondent) and that a “mere possibility is enough to satisfy the conditions of GEN 3.1(1)(b)”. On that basis, paragraph GEN 3.1(1) was satisfied in the Respondent’s case and alternative sources of income should have been considered. In view of the UT’s finding at paragraphs [32] and [34] that Mr Khera had sufficient financial resources to support his parents and would continue to do so, the UT found at paragraph [44] that it would be disproportionate to refuse entry clearance to the Respondent.

Permission to appeal was granted by an order of Andrews LJ dated 6 December 2024.

The Secretary of State advances two closely related grounds of appeal. First that the UT incorrectly interpreted and/or applied paragraph GEN 3.1(1). Secondly, that the UT reached a perverse conclusion when it found that refusing the Respondent’s application for entry clearance could result in unjustifiably harsh consequences for the Respondent or his family given its prior findings that such refusal would not do so.

Specifically, the Appellant argues that “could” in GEN 3.1(1)(b) must be understood to mean that there is a “real risk” of a breach of Article 8 rights arising from the relevant circumstances and the UT erred in finding at paragraph [42] that “mere possibility is enough to satisfy the conditions of GEN 3.1(1)(b)”.

Mr Biggs, for the Appellant, drew attention to: Mahad v Entry Clearance Officer [2009] UKSC 16, and, R (Wang) v SSHD [2023] UKSC 21 (“Wang”) which made clear that general principles of construction were applicable such that interpretation of the IR should be contextual and purposive. Some “relaxation of strictness” (cf Wang paragraph [31]) might be appropriate given the context and purpose of the IR. Mr Biggs argued that the Secretary of State’s interpretation of paragraph GEN 3.1(1)(b) was supported by an examination of: (i) the purpose of paragraph GEN 3.1, as articulated by the Supreme Court in MM (Lebanon) v SSHD [2017] UKSC 10 (“MM (Lebanon)”); (ii) its context, including within the IR as a whole; and (iii), the application of the absurdity principle of interpretation as it applied to the conclusion arrived at by the UT.

MM (Lebanon) involved several appellants who claimed that the then applicable IR were incompatible with their rights under the ECHR. One appellant challenged the refusal to grant her entry clearance where she had failed to meet the minimum income requirements. In paragraphs [93]-[101] the Court held that a minimum income requirement was not itself unlawful. It pursued the legitimate aim of ensuring applicants had sufficient resources which served to protect the interests of the British state and it was not irrational for the Secretary of State to prioritise simplicity of operation within the IR. This meant that prospective earnings or guarantees of third party support were not routinely taken into account when considering minimum income requirements. However, when assessing whether ECHR rights had been breached, a broader evaluative approach was needed which could include an assessment of third party financial support. With this in mind the Court suggested that the IR be revised to indicate the circumstances in which alternative sources of income from those ordinarily considered should be taken into account where Article 8 was engaged. Paragraphs GEN 3.1 and 3.2 were introduced in response to this judicial prompt.

Mr Biggs argued that paragraph GEN 3.1 specifically gave effect to paragraph [100] of MM (Lebanon):

“100.

…What is necessary is that the guidance to officers should make clear that, where the circumstances give rise to a positive article 8 duty in the sense explained in Jeunesse, a broader approach may be required in drawing the “fair balance” required by the Strasbourg court. They are entitled to take account of the Secretary of State’s policy objectives, but in judging whether they are met, they are not precluded from taking account of other reliable sources of earnings or finance. It is open to the Secretary of State to indicate criteria by which reliability of such sources may be judged, but not to exclude them altogether.”

Mr Biggs argued, relying upon Jeunesse v The Netherlands (2015) 60 EHRR 17 and R(Agyarko and Ikuga) v SSHD [2017] UKSC 11 that the “positive article 8 duty” referred by the Court was the positive duty to confer entry clearance where to do otherwise would breach Article 8 (not merely a duty to look at alternative sources of income). Mr Biggs suggested that the word “could” might helpfully be understood as implicit between “circumstances” and “give rise” in the first sentence quoted above.

In short, the purpose of paragraph GEN 3.1 was to allow some flexibility with respect to the financial requirements in order to avoid breaches of Article 8. In oral submissions Mr Biggs accepted, on behalf of the Secretary of State, that because “could” (in GEN 3.1) implied a lower threshold than “would” (in GEN 3.2):

As to context, the Secretary of State contended that the UT’s interpretation of paragraph GEN 3.1 was incompatible with the linguistic context of that provision within the IR. In particular:

The Secretary of State relied also upon R (PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28 paragraphs [40]- [43] as authority for the proposition that courts should not interpret measures in a manner which leads to absurd results. Mr Biggs contended that the UT’s approach did lead to absurdity. Relaxing the financial requirements in the IR where not doing so meant that there was a “mere possibility” of a future breach of Article 8 undermined the coherence and efficacy of the IR as a whole and was far removed from the usual understanding and application of Article 8 assessments. It had the effect of construing the requirements for there to be a real and practical risk of a breach of Article 8 rights meaningless since it was possible to hypothesise or imagine, in almost any case, extreme future events that if they arose could prejudice Article 8 rights if clearance was refused.

The Secretary of State’s position, in conclusion, was that: (i) the wrong test had been applied by the UT; and, (ii) given the findings of the UT at paragraph [41] (that the Respondent and his family would not face unjustifiably harsh consequences from the refusal of the Respondent’s entry clearance) had the UT applied the correct test it could not have found that paragraph GEN 3.1 (or paragraph GEN 3.2) was satisfied. It followed that the original (negative) decision of the ECO was correct.

Mr Richardson, for the Respondent, accepted, in his helpful and clear written and oral submissions, that the approach taken by the UT at paragraph [42], where it speculated as to future scenarios in which unjustifiably harsh consequences might theoretically be suffered as a result of the ECO Decision, went too far. It was, he conceded, “problematic”. However, he argued that this was not material to the appeal. The correct understanding of paragraph GEN 3.1 was that it operated as a “gateway” whereby alternative sources of income should be considered if there was a “possibility” of unjustifiably harsh consequences. In oral submissions, Mr Richardson argued for “realistic possibility” as a suitable interpretation of “could” in paragraph GEN 3.1. The Respondent’s position, in sum, was that:

The Respondent agreed that MM (Lebanon) was the source of the provision in paragraph GEN 3.1. To give effect to that judgment paragraph GEN 3.1 had to be construed in a permissive manner, with a relatively low threshold to be crossed before alternative sources of income could be examined. To do otherwise risked breaching Article 8. The key points made were that:

Turning to the specific operation and language of paragraphs GEN 3.1 and 3.2, the Respondent argued that:

The Respondent argued that the UT’s findings on the consequences of entry clearance being refused were clear and would satisfy the correct test of their being a possibility of unjustifiably harsh consequences in such circumstances, such that entry clearance should have been granted. Mr Richardson pointed to the findings that Mrs Khera’s Article 8 rights would suffer a “significant interference” by the refusal of the Respondent’s application, at paragraph [41], and that there was a “possibility” that refusal of entry clearance “could” result in unjustifiably harsh consequences for the Respondent or his family, at paragraph [42]. Mr Richardson also argued that the finding in paragraph [41] that such refusal was “not an interference that… would result in unjustifiably harsh consequences” for the Respondent or his family corresponded to the test in paragraph GEN 3.2, and was undertaken without consideration of alternative sources of income.

The financial eligibility provisions incorporated into the IR require applicants for entry clearance to show evidence of sufficient means and are justified upon the basis that applicants with sufficient economic resources are less likely to be a burden on the state and better able to integrate into society: see section 117B(3) Nationality, Immigration and Asylum Act 2002, and Rhuppiah paragraph [20]. As was made clear in MM (Lebanon) it was also legitimate for the state to prioritise simplicity of operation within the IR. Some applicants will satisfy all requirements for entry clearance save for the financial requirements but have available to them reliable alternative sources of income. A refusal of entry clearance without considering those alternatives risks breaching Article 8. To address this risk, as identified in MM (Lebanon), paragraphs GEN 3.1 and 3.2 were added to Appendix FM.

It is helpful to place the operation of these rules into the context of the scheme as a whole. Standing back the scheme works in the following way. First, an applicant who seeks clearance upon the basis of family rights must meet eligibility requirements laid down by the state over which the state has a broad margin of discretion. These requirements might include financial sustainability thresholds. Prima facie, an applicant is required to demonstrate financial resilience from that person’s own resources. However, as an exception the state might accept proof from third sources. The state is entitled to assume that where the resources come from a third source their intrinsic reliability might not be as strong as when they come from the applicant and that there is an administrative burden which lies in verifying what, by their nature, might be less clear and certain sources of income and resource. Nonetheless, if the state ignores third party resources there is risk that an applicant’s Article 8 rights will be breached. Some sort of a risk assessment therefore needs to be undertaken to decide whether a refusal to open the procedural door to consideration of third source financial information would lead to a violation of Article 8. This is the “could” in GEN 3.1(b) and relates to the risk of breach if clearance is not given which then justifies resort to this source information.

The Secretary of State points out, and accepts, I think correctly, that because “could” implies a lower threshold that “would” there is a possibility that an applicant will be granted clearance on a slightly lower threshold test. This is not problematic because “could” still performs an important and substantive human rights balancing role between the individual and the state and, furthermore, the policy objectives of the state are in fact met because, even if in theory the applicant has obtained clearance on a slightly attenuated basis, the applicant still meets the state’s eligibility requirements, albeit by a circuitous route. What happens if clearance is refused? If no recourse is made to third source information, or if on analysis the material is insufficient, this does not necessarily mean that clearance is refused. Paragraph GEN 3.2 is then engaged and the ECO must consider whether refusal “would” violate Article 8. At this juncture the “would” implies a higher threshold than “could” and, again, serves to strike the balance between the state and the individual.

It follows that GEN 3.1 and 3.2 should be read together and in their collective effect provide the means whereby a proper balance is struck between the important and legitimate right of the state to control entry and set appropriate eligibility requirements and any competing private, family interests of the applicant under Article 8.

It is possible to break down the questions that need to be answered under the combined effect of GEN 3.1 and 3.2:

In view of the above the following points can be made about the relevant language:

The UT was clear, and it is not in dispute, that Mrs Khera’s Article 8 rights were engaged (cf UT Decision paragraph [41]) in the sense that her right to respect for her family life was in issue, given that the ECO Decision would mean that she could not live with her husband in the UK. The UT did not however find that the ECO Decision to refuse clearance was likely to cause unjustifiably harsh consequences for the Respondent or his family and found only that a risk of such consequences could arise in speculative, future scenarios (UT Decision paragraphs [41]-[42]). With regard to Mrs Khera the only current circumstance of relevance was her ill-health as to which the UT was clear, on the facts, that she could return to India to live with the Respondent and could access necessary medical treatment there.

As such the Respondent cannot succeed in showing that any circumstances exist evidencing a real risk or a realistic possibility of unjustifiably harsh consequences for him or his family because of the ECO Decision.

Given that, on the facts, there was no realistic possibility (measured on a “could” or “would” basis) of an Article 8 violation there was no need or requirement for the ECO under GEN 3.1 to look to alternative sources of finance. The refusal of clearance was lawful.

For the above reasons I would allow the appeal.

I agree.

I also agree.