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

MRS JUSTICE ANDREWS: This is a claim for judicial review made by the claimant, Hong Kiat Chu, his partner and his son, who is now 3 years old. They seek judicial review of the decisions made by the Secretary of State on 4th April 2013, refusing them leave to remain outside the Immigration Rules on the basis of Article 8 of the ECHR.

At the heart of the claim is the complaint that the Secretary of State has failed to assess the claimant’s and his dependents’ case under Article 8 outside the Immigration Rules. The decision maker considered the claim for leave to remain under Appendix FM which from 9th July 2012 brought Article 8 questions into consideration within the scope of the Immigration Rules. Until 9th July 2012 if someone was seeking to rely upon Article 8 in support of a claim to stay in the United Kingdom in circumstances where they did not qualify for leave to remain under the rules, the matter was not governed by any rule or regulation, and the decision maker had to weigh up in the balance all of the relevant factors that were prayed in aid and determine, ultimately, whether it would be a disproportionate interference with the applicant’s right to private life or right to family life not to grant that person leave to remain in the jurisdiction.

The specific decision in this case is one in which the decision maker has considered the requirements set out in the Immigration Rules as from 9th July 2012, has looked at whether or not those requirements are met, and has concluded that they are not. On behalf of the claimant, Mr Walsh submitted that that was the sum total of the exercise that the decision maker has carried out, and that there has been no decision made in relation to the claim outside of the rules. He contended that the two-stage process that is required in such circumstances has not been followed.

I should interpolate that when granting permission to bring judicial review in November 2013, Hickinbottom J set out a number of directions. Amongst them was a direction that any reply to the defendant's grounds and any application by the claimants to lodge further evidence must be lodged within 21 days thereafter. That deadline passed and no such application was made within the time prescribed.

Despite that direction I have before me today an application on behalf of the claimant to adduce further evidence. That evidence was not served on the Secretary of State until the 13th February. She objects to the evidence being adduced on grounds not only of its lateness and the failure to comply with the directions given by the court, but on the basis that a large part of it consists of an expert report from Professor Jackie Sheehan of the University College of Cork which is quite extensive, and voluminous expert evidence relating to the difficulties that this family allegedly will find if they are required to go back to Malaysia, that being the country of origin of the claimant, or China, that being the country of origin of his partner. The Secretary of State says that she simply has not had time to deal with that evidence, or to take stock of it, and in particular she has had insufficient time in which to put in evidence in response.

There are also in the bundle two witness statements, one from the claimant and one from his partner, which set out a lot more of the factual background and the history of this matter and proffer an explanation, amongst other things, as to why they are not married. It is in that material that it is stated for the very first time that they have principled objections to the institution of marriage and that it is this that prevents them from overcoming certain of the obstacles in their way to relocation by simply getting married.

I read all that evidence on a de bene esse basis. It is fair to say that Mr Walsh did not press too hard that I should take it into consideration, having very properly accepted that there was no legitimate excuse for the claimant’s failure to meet the deadline set by the court for putting in such evidence. The only real explanation that was given to me is that the expert concerned was travelling abroad for a length of time. That does not explain why the witness statements to which I have referred, which bear dates in January, were not served within time. The other material that is sought to be adduced seems to me to add very little to the material that was before the decision maker.

In the event it seems to me that it is inappropriate for me to exercise my discretion to admit this further evidence. Having looked at it, first of all, I do not consider that it would be fair to the Secretary of State to take it into account without enabling her to adduce evidence in response to it, and that course of necessity would require an adjournment. Secondly, I am not sure that the evidence takes the issues that I have to decide any further. It is possible that if this matter were to go before an Immigration Tribunal at some point in the future, such considerations might come into play, but given that none of this material was before the decision maker at the time of the decision, and given that it really only fleshes out certain of the Article 8 considerations that are said to arise, I am not sure that looking at it at this stage is going to help me to decide whether or not the decision that is complained of was unlawful, Wednesbury unreasonable, or irrational.

The first point that is taken is that the wrong rules were being looked at. Mr Walsh accepted that this point is probably academic, but he submitted that under the transitional provisions in the statement of changes in Immigration Rules HC194, if an application for leave to remain has been made before 9th July 2012, as this application was, and the application has not been decided before 9^th July, it should be decided in accordance with the rules in force on the 8th July 2012. He says that in fact this particular application was decided by reference to the rules that were in force at the date of the decision; that is, those that came into force after the 9th July 2012.

The point is academic because Mr Walsh also very fairly concedes that his clients would not have met the requirements of the Immigration Rules whether they were the old rules or the new rules. But he says that it is part of the flawed decision-making process that the case worker applied the wrong set of rules to this case.

I reject that submission. It is clear that HC194 is dealing with a situation where a claim is made under the Immigration Rules. In such a case, the transitional provision determines which set of Immigration Rules will apply to the claim, depending upon the date on which the relevant application was made to the Secretary of State. That much is clear from the decision of the Upper Tribunal in IA/15197/2013 Bendanillo v Secretary of State for the Home Department. In that case the claimant, who was appealing to the Upper Tribunal, was claiming indefinite leave to remain under paragraph 134 of the Immigration Rules. Not surprisingly in paragraph 40 of the decision an argument that the judge below was required to apply the new rules was held to be untenable, because the claimant’s application was made before 9th July 2012 and so by virtue of the transitional provisions the new rules did not apply to it. However, the Bendanillo case does not deal with the situation in the present case, which is where the application was always made outside the rules, because there were no rules dealing with Article 8 considerations before the introduction of the rules in Appendix FM on 9th July 2012.

Paragraph 111 of HC194 deals with cases where someone raises an Article 8 claim in the context of deportation. That rule says that that in such circumstances the claim under Article 8 will only succeed where the requirements of the Immigration Rules as at the 9th July 2012 are met, regardless of when any notice of intention to deport or the deportation order (as appropriate) was served. That is a reflection of the general principle of law that in the absence of any express provision to the contrary, the Secretary of State is obliged to apply the law in force as at the date of the decision, rather than the law in force as at the date of an application or some other earlier step, such as the service of a notice of intention to deport, or the date of a deportation order.

That position has been reflected in a number of decisions including the case of Odelola v Secretary of State for the Home Department [2009] UKHL 25, in which the House of Lords decided that if transitional provisions are not applicable, changes to the Immigration Rules will apply from the date on which they come into force, and therefore applications are to be decided in accordance with the rules in force at the time of the decision and not at the time of the application.

Turning to the issue that lies at the heart of this matter, the question is whether or not the decision maker has reached a flawed decision by only applying the Immigration Rules and not going on to consider whether to exercise the discretion which it is established and accepted continues to exist outside of the rules.

An argument of that nature was considered by Sales J in the case of R v Nagre v Secretary of State Home Department [2013] EWHC 720 (Admin). That was a case in which consideration was given to the guidance for the exercise of discretion outside the rules issued by the Secretary of State. Paragraph 3.2.7d of the guidance is entitled "exceptional circumstances". This really reflects the decision of the House of Lords in the case of Huang. It states:

As Sale J mentioned in paragraph 14 of Nagre, there was no challenge to the lawfulness of this guidance. He observed that it gave clear and appropriate guidance to relevant officials that if they come across a case falling outside the new rules, they nonetheless have to consider whether it is a case where on the particular facts, there would be a breach of Article 8 rights if the application for leave to remain were refused.

In Nagre there is also consideration of what exactly the decision maker has to do and in particular whether or not it is compulsory in all cases for the decision maker first of all to set out considerations under the rules and then to have a separate passage in the decision letter dealing with the assessment of Article 8 outside the rules.

Sales J agreed with the guidance given by the Upper Tribunal in the case of Izuazu, at paragraph 40 to 43. If the claimant does not meet the requirements of the rules it will be necessary for the decision maker to go on to make an assessment of Article 8 applying the criteria established by law, and when consideration is given to whether the decision is a justified interference with the right to family or private life, the decision maker must carry out a balancing process. The provisions of rules or other statements of policy may again re-enter the debate in this context, but this time as part of the proportionality evaluation. However, Sales J says at paragraph 30:

I respectfully agree. In the present case it is fair to point out that a statement of the kind that Sales J had in mind does not appear on the face of the Decision Letter. However, Miss Candlin submits that it obvious from the way in which the decision is expressed that this is a case in which it would have been a sterile exercise for the decision maker to have gone through separate considerations under Article 8. The key passage is on the second page of the Decision Letter, where consideration is being given to EX1 and in particular, to the position of the child concerned, whose name is "Johnson". The decision maker says this:

Miss Candlin submits that the phrase "insurmountable reasons" which appears on the face of the relevant immigration rule is shorthand for the assessment of the proportionality of interference with a claimant’s Article 8 rights upon carrying out the balancing exercise to which Sales J has referred in the case of Nagre (albeit that his observations were made in the context of slightly different language elsewhere in the rules). It means the same as the slightly different language used in the guidance, where the phrase that is used is "exceptional circumstances". She submits that the decision maker plainly did take into account all of the reasons that were put forward for the grant of leave on Article 8 grounds including the difficulties the family would face in relocation to China or Malaysia. Having done so, he had come to the conclusion that when all the factors were balanced together it would not be a disproportionate interference with Article 8 to refuse the family unit leave to remain in the UK. Thus there was no error of law because all relevant Article 8 considerations were addressed.

Mr Walsh, on the other hand, submitted that the phrase "insurmountable reasons" was to be read literally and that the decision maker was setting a high barrier for refusal under the Rules. A lower barrier would be required when one was carrying out the weighing up exercise of proportionality for exercise of discretion outside the rules.

There is useful guidance to be found in the slightly different context of deportation in the Court of Appeal decision in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192. In that case there was reference to the guidance issued by the Secretary of State on the deportation of foreign criminals, in circumstances where it is claimed that deportation would be a disproportionate interference with the Article 8 rights of the person concerned. The phrase used in the guidance is "exceptional circumstances".

The Court of Appeal held that it was not Parliament's intention to reintroduce by the back door the test of exceptionality that had been deprecated by the House of Lords in Huang v Secretary of State for the Home Department [2007] UKHL 11 and subsequently in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, but rather that there was a reflection of the Strasbourg jurisprudence and the case law in this country of the proportionality exercise and the balancing exercise under Article 8 and that the rules were to be read as reflecting the appropriate approach.

The Court of Appeal held that the rules expressly contemplated a weighing of the public interest in deportation against other relevant factors including any established private life and family life. They said in their view the phrase “exceptional circumstances” must be a reference to all other factors that are relevant to proportionality and entails an implicit requirement that they are to be taken into account. They did not need to decide the meaning of insurmountable obstacles to family life which was referred to in the conditions but they said:

In my judgment, the only way to read this Decision Letter that makes sense is not to take a literal view of the phrase "insurmountable reasons". "Insurmountable reasons" a phrase found within the new Immigration Rules, is shorthand for the balancing and proportionality exercise which must be carried out in Article 8 cases whether they are within the rules or outside the rules. It makes no sense to say that there is a higher threshold that has to be met in order to meet the rules than the threshold that would be met to grant exceptional leave outside the rules. One might see that there might be arguments the other way round but in my judgment, one does not need to go that far because the decision maker in this particular case was properly carrying out the exercise of determining whether all of the factors that would militate against this family's relocation from the United Kingdom were so compelling that it would amount to a disproportionate interference with Article 8 to refuse them leave to remain. The decision maker clearly came to the conclusion that it would not.

Having looked with sufficiently anxious scrutiny at the materials that were before the decision maker, it is impossible for this court to come to the conclusion that this was a decision that amounted to an error of law or that there was inadequate consideration of all the relevant factors. Despite the fact that the reasoning is brief, it does not appear that anything of a truly compelling nature really arises in the present case, or at least on the basis of the material that was before the decision maker. It is not for this court to second guess that decision. On the application of Sales J's formulation, “is there a good arguable case that the decision was disproportionate?” the answer is "no". There is no good arguable case that the decision was informed by error of law or that a two tier approach was necessary, given that all relevant factors pertaining to the exercise of rights under Article 8 were properly taken into account by the decision maker. That disposes of the main grounds of judicial review.

There is a further point which was raised for the first time in the claimant's skeleton argument, which was that the Secretary of State had unlawfully failed and was continuing to fail to make an immigration decision, the immigration decision of course being a decision to issue removal directions, which would then generate a right of appeal if Article 8 considerations at that stage were held not to be insufficient grounds for stopping the removal of the family.

The law on this is very clear. Unless there are other provisions that require, as a matter of policy, that the Secretary of State should consider the matter and issue removal directions, then the normal rule is that there is no obligation on the Secretary of State to do so. That much was endorsed by the Supreme Court in the recent case of Patel v Secretary of State for the Home Department which took the same approach as the Court of Appeal in the case of Daley-Murdoch v Secretary of State of the Home Department [2011] EWCA Civ 161.

So in order to make good the submission, Mr Walsh had to show that the matter came within the policy of the Secretary of State dictating that an immigration decision be made. The published policy is clear and it is inapplicable in the present case. It echoes the concerns expressed in some of the earlier authorities that there may be a need for certainty in cases involving children. However there are certain criteria that have to be fulfilled in order for the policy to apply. The applicant for a decision has to have made a valid out-of-time application for leave to remain which has been refused. He must not have received a removal decision at the time when the application was refused. He must have failed to leave the UK voluntarily, and he must have requested in a pre-action protocol letter or letter before action that a removal decision be made. Miss Candlin submitted that the email which amounted to a pre-action protocol letter was not clear in its request for an immigration decision, because it does not ask for one in terms. It is true that it does not, but the email does make it clear that the applicant was seeking to appeal the Secretary of State's decision, and the only way in which there could be any right of appeal would be if an immigration decision were made. The natural inference to be drawn from that letter is that an immigration decision is being requested. I would not find that the policy is inapplicable on that ground alone.

However, it is quite clear that the policy to issue an immigration decision in cases affecting the Article 8 rights of a child does not apply to this case because the child concerned (Johnson) is too young. The Secretary of State has decided as a matter of policy, (and that policy is not challenged) that children of 3 years and younger can be expected to be relocated with their parents. Consequently, an immigration decision may be requested only in circumstances where the child is older. The best interests of a child of Johnson’s age will not be separately affected by the decision under challenge. So there is no obligation in this case for the Secretary of State to issue an immigration decision. She is entitled to take the view that the family could voluntarily relocate.

It may be that they take a view that they will not do so because of the difficulties to which I have already referred. I have not gone into the details of those difficulties because it seems to me to be inappropriate to do so at this stage. Suffice it to say that it does appear on the evidence before me that many if not all of those difficulties may be surmountable in consequence of voluntary action on the part of the claimants, since most of the difficulties seem to arise from the fact they are not married. It remains a point for future consideration if and when removal directions are set as to whether or not it would be an appropriate exercise of discretion to refuse or allow leave to remain on the basis of difficulties which the individuals concerned could voluntarily overcome by taking action to which they have allegedly principled objection. But, as I say, that remains for another day. It is not a decision that I have to make and it understandably played no part in the decision under review because those principled objections to getting married were not before the decision maker.

For those reasons, I dismiss this application for judicial review. I will hear counsel on the question of the costs consequences.

MISS CANDLIN: My Lady, as set out in the acknowledgement of service and detailed grounds the Secretary of State does seek his full costs of this application given that it has failed. Furthermore we do ask that the claim be certified as completely without merit.

MRS JUSTICE ANDREWS: I thought about that. You are saying that this is a Mount Cook situation, you are entitled to the costs of today, do you?

MISS CANDLIN: Yes.

MRS JUSTICE ANDREWS: On the basis that it is totally without merit?

MISS CANDLIN: Partly on the basis of that but we would have asked in any event with or without merit to have our costs of today. Costs follow the event if the claimant has not succeeded.

MRS JUSTICE ANDREWS: This is a judicial review. Yes of course it is different... I am thinking of renewals. Quite right. Have you a schedule?

MISS CANDLIN: No, we have not.

MRS JUSTICE ANDREWS: That is unfortunate. Mr Walsh?

MR WALSH: Yes. The defendant, the normal course of events is that she is entitled to her costs regardless. I must say I find this thing about completely without merit is going behind the grant of leave of course by Hickinbottom J. I do not know what purposes --

MRS JUSTICE ANDREWS: I am not going to make a TWM ruling.

MR WALSH: I did check with the Treasury Solicitor and he tells me, and there is no reason to doubt, that the acknowledgement of service and the grounds had been submitted by the time, because I was going to make the point….

MRS JUSTICE ANDREWS: That it was out of time?

MR WALSH: Yes.

MRS JUSTICE ANDREWS: I think it was in fact just about in time. It was lodged on 8th November. We have £480 for that, but you are somewhat disadvantaged by the fact that there is not a schedule. It is a less than one day case, so they are in breach of the rules. Do you have any submissions about that?

MR WALSH: I say there should be no order for costs in relation to today. That is what I should say my Lady. I cannot object to the costs as specified in the detailed summary grounds.

MRS JUSTICE ANDREWS: There is a slight problem without a schedule. You are supposed to serve one 24 hours in advance. It is less than a day.

MISS CANDLIN: My Lady it is quite common that the costs are granted subject to agreement to be assessed if they are not to be agreed.

MRS JUSTICE ANDREWS: It is still in breach of the rules. The fact that it is common does not make it right. The Secretary of State is, I know, under lots of pressure and has to do lots of things, but there has been a wholescale failure of compliance with the rules leading to two lots of extensions, you just about got in on time on the last acknowledgement of service, and no schedule of costs.

MISS CANDLIN: My Lady I would say that not getting the acknowledgement of service in on time without various extensions is actually water under the bridge because Hickinbottom J permitted the application to go ahead.

MRS JUSTICE ANDREWS: I know he did. But one is entitled to take into account on questions of costs the way in which a party has dealt with the litigation in general. Whilst I appreciate that the Secretary of State has an awful lot of casework on her hands and I do have certain sympathy with that, this court is getting much tougher in terms of its attitude towards people who break the rules. One has to take that view with the government as well as with individual privately paying parties. Either I exceptionally make an order for detailed assessment in default of agreement which you say is common, notwithstanding what the rules say, or I set an example and say: you are not going to have your costs today because you have not complied with the rules.

MISS CANDLIN: My Lady we complied, in certain respects of the acknowledgement, there were omissions. To that extent, part of the conduct is accepted but the defendant did comply with Hickinbottom J's request for detailed grounds of defence within 35 days. The claimant having been notified of those grounds, then failed to comply with the directions. It was set out in the detailed grounds that costs would be sought.

MRS JUSTICE ANDREWS: So why is there not a schedule?

MISS CANDLIN: It may be in the alternative my Lady, if I could take instructions that a sum might be, a token sum might be appropriate in terms of the hours.

MRS JUSTICE ANDREWS: I can have a rough idea of what your brief fee is likely to be, but then I have to see what Mr Walsh has to say. (Pause) While Miss Candlin is taking instructions Mr Walsh, did you serve a schedule?

MR WALSH: No my Lady.

MISS CANDLIN: My Lady I am instructed to ask, please, for the costs of the acknowledgement of service which I believe are set out, the costs of the detailed grounds which are pleaded in the detailed grounds at £660 and then my attendance today which is £110 per hour. It has been about 3 hours.

MR WALSH: I do not object to the amount. If my Lady is going to ... I say they should not get any costs today but if there are costs I am not objecting to the amount. I say there has been ... the defendant has been in breach of what makes the acknowledgement of service and I say that should be reflected in some way and I say the proportionate response is to give her the costs which are something like £1150 up to and including the detailed grounds of defence.

MRS JUSTICE ANDREWS: That is what I was minded to do, Mr Walsh.

I think it is high time that in cases of judicial review, people actually served costs schedules as required by the rules, to enable summary assessment. The rules are there to serve a purpose. I do not think it is appropriate in this case to disallow costs that have been incurred by the defendant at an earlier stage, because the claimant does at least have a rough idea of what they actually are and is not objecting to the amount. Miss Candlin, you can have your costs of the acknowledgement of service and costs of the detailed grounds of defence, in the amount you told me, but I am not going to allow the defendant to recover the costs of today for that very reason - no schedule of costs was served in advance, and because a marker needs to be put down in relation to that. Thank you both very much.