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

The Claimant is a national of Jamaica. He was born on 22 April 1977. In the summer of 2000 he met Louise McDonald, a UK national who was then on holiday in Jamaica. They began a relationship.

The Claimant entered the United Kingdom on 15 January 2001 and again on 26 May 2001. He came to live with Miss McDonald and they continue to live together. The Secretary of State has accepted that they are in a genuine and subsisting relationship. Miss McDonald is in full-time employment and the Claimant is a self-employed builder and decorator. They have no children together. Miss McDonald has a son from a previous relationship.

The Claimant’s leave to remain in the United Kingdom expired on 20 September 2002. It appears that for over 10 years he took no steps to regularise his immigration status. However, on 29 December 2012 he came to the attention of the police, who made a referral to the immigration authorities.

On 7 January 2013 the Claimant applied for leave to remain in the United Kingdom. The Secretary of State refused this application for the reasons set out in a Notice dated 1 March 2013 (“the 2013 Notice”). It is that refusal which is challenged in these proceedings.

The Claimant issued the Claim Form on 2 September 2013 and on 9 January 2014 HHJ Blackett granted permission to apply for judicial review. The fee payable at that stage was not paid and the file was closed, but re-opened by order of Maura McGowan QC (as she then was) on 9 July 2014.

Meanwhile, the Secretary of State has given further consideration to the Claimant’s application, in the light, in particular, of what the Claimant said in the Claim Form about his and his partner’s medical conditions. The result of that further consideration is a letter dated 13 January 2015 (“the 2015 Letter”) which sets out the Secretary of State’s reasons for continuing to refuse the Claimant leave to remain.

The steps taken by the parties in advance of the hearing on Wednesday 21 January 2015 were far from ideal. The 2015 Letter was dated only 8 days before the hearing and did not reach the Claimant’s current solicitors until Monday 19 January 2015. The Claimant did not instruct his counsel, Mr. Parminder Saini, until Tuesday 20 January 2015. Commendably, Mr. Saini produced a skeleton argument in the early hours of Wednesday 21 January 2015. However, he took some points which had not been adumbrated, fully or at all, in the Claim Form.

Against that background, I am grateful to both counsel for their helpful submissions, not only at the hearing but in writing afterwards on a number of points of law which, in the circumstances, could not be fully addressed at the hearing.

The issues for my decision are as follows:

I consider these issues in turn. First, however, it is appropriate to consider the case as a whole, by reference to well-known statements of the applicable human rights law by the European Court of Human Rights in cases such as Rodrigues da Silva and Hoogkamer v. Netherlands RJD 2006-I 223; (2007) 44 EHRR 34, in which the Court said (at paragraph 39):

“The Court reiterates that in the context of both positive and negative obligations the State must strike a fair balance between the competing interests of the individual and of the community as a whole. However, in both contexts the State enjoys a certain margin of appreciation. Moreover, Art.8 does not entail a general obligation for a state to respect immigrants' choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a state's obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the contracting state, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration control (e.g. a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion. Another important consideration will also be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious. The Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Art.8.”

The present case is one where “family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious” and there is “a history of breaches of immigration law”.

The 2015 Letter

Mr. Saini submitted that the 2015 letter was unlawful and that I should ignore it. For the Secretary of State, Mr. Hansen submitted that it was the common practice of this Court in immigration cases to consider decisions made by the Secretary of State upon reconsideration of an application after judicial review proceedings had been commenced.

Mr. Saini relied on the decision of the Court of Appeal in R. (Ermakov) v. City of Westminster (1996) 28 H.L.R. 81 (“Ermakov”). That was a homelessness case in which the Respondent’s homelessness officer swore an affidavit in which he purported to set out the reasons for his original decision, but the reasons given in the affidavit were “completely at odds” with those given in the decision letter which had been sent to the Applicant.

Mr. Saini relied in particular the following passage from the judgment of Hutchison L.J.:

“(2)

The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in ex parte Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence - as in this case - which indicates that the real reasons were wholly different from the stated reasons. It is not in my view permissible to say, merely because the applicant does not feel able to challenge the bona fides of the decision-maker's explanation as to the real reasons, that the applicant is therefore not prejudiced and the evidence as to the real reasons can be relied upon. This is because, first, I do not accept that it is necessarily the case that in that situation he is not prejudiced; and, secondly, because, in this class of case, I do not consider that it is necessary for the applicant to show prejudice before he can obtain relief. Section 64 requires a decision and at the same time reasons; and if no reasons (which is the reality of a case such as the present) or wholly deficient reasons are given, he is prima facie entitled to have the decision quashed as unlawful.

(3)

There are, I consider, good policy reasons why this should be so. The cases emphasise that the purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reversal of the stated reasons is inimical to this purpose. Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties. In the present case it was not, but in many cases it might be, suggested that the alleged true reasons were in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings. That would lead to applications to cross-examine and possibly for further discovery, both of which are, while permissible in judicial review proceedings, generally regarded as inappropriate. Hearings would be made longer and more expensive.

(4)

While it is true, as Schiemann J recognised in ex parte Shield, that judicial review is a discretionary remedy and that relief may be refused in cases where, even though the ground of challenge is made good, it is clear that on reconsideration the decision would be the same, I agree with Rose J's comments in ex parte Carpenter that, in cases where the reasons stated in the decision letter have been shown to be manifestly flawed, it should only be in very exceptional cases that relief should be refused on the strength of reasons adduced in evidence after the commencement of proceedings. Accordingly, efforts to secure a discretionary refusal of relief by introducing evidence of true reasons significantly different from the stated reasons are unlikely to succeed.”

Mr. Saini also referred me to the Upper Tribunal case of Kerr v. Secretary of State for the Home Department [2014] UKUT 493 (IAC), a case very similar on its facts to the present, and in which Judge Jordan cited Hutchison L.J.’s judgment in Ermakov, but then said as follows (in paras. 14-17):

“14.

The principles set out in Ermakov have no application in the present case. They were directed towards the lawfulness of an earlier statutory decision. Such a decision cannot be remedied by what is said later. In this case I have already made a finding that the decision of March 2013 is unlawful. It was unlawful and remains unlawful and will always be unlawful. Nothing that is said in the decision of 10 September 2014 alters the lawfulness of the earlier decision. Indeed, the very fact that it was thought necessary to provide another letter strongly suggests that the earlier decision was deficient and required the consideration of additional material.

15.

The relevance of the letter of 10 September 2014 is focused upon the remedy that the Tribunal affords when an earlier decision is found to be unlawful but is followed by a later decision. If the later decision is a lawful consideration of all of the factors that the decision maker was required to consider but failed to consider in the earlier decision and omits consideration of all those factors that the decision maker was required to omit, the later decision will be a lawful one. This does not alter the status of the earlier decision. As I said in the course of argument, if judicial review proceedings are commenced alleging that the relevant decision is unlawful, those proceedings will have been justified and their commencement will remain justified at least until a lawful decision is made. Hence, the applicant is protected insofar as the costs are concerned until at least the letter of 10 September 2014 was received. Thereafter, an applicant is entitled to a little time in which to consider the ramifications of the later letter and to consider whether the judicial review proceedings should continue, to include, where appropriate, a suitable provision for the payment of costs. Thus protected, there is no prejudice suffered by the applicant from the Tribunal considering the subsequent letter providing that, in doing so, the applicant is afforded sufficient time to consider it and it is not unfair for the Tribunal to express its views about its lawfulness.

16.

This is a necessary corollary of its determination that the earlier decision was unlawful. If the earlier decision is quashed, it would normally be appropriate to direct that the respondent makes a fresh and lawful decision. If, however, a fresh and lawful decision has already been made, there is no point in requiring a further decision which would, of necessity, replicate what has already been decided. Accordingly, it is necessary to look at the decision of 10 September 2014 in order to determine the appropriate remedy. If the decision of 10 September 2014 merely replicates the error of the original decision, the respondent's position is advanced no farther and the appropriate remedy is to direct that the respondent must make a fresh and lawful decision.

17.

Mr Biggs submitted that the letter of 10 September 2014 which is expressed to be a supplemental decision and to be read in conjunction with the original decision did not amount to a decision at all and should be disregarded as it sought to enlarge the decision of 9 March 2013 which was impermissible on Ermakov grounds. For the reasons that I have given, this is not the function of the subsequent letter. Since the letter of 9 March 2013 was a sustainable disposition of the applicant's claims under those parts of the Immigration Rules there referred to, there was no reason to withdraw that part of the reasoning. It was not the decision maker’s application of the Immigration Rules that rendered the letter unlawful. Hence it does not matter that the earlier decision was not withdrawn by the later decision. Nor does it matter that the letter was expressed to be supplemental, as indeed it was. There is no doubt that it was a decision because it considered all the relevant material and purported to reach a sustainable conclusion upon it.”

This analysis applies, mutatis mutandis, to the facts of the present case. The claim is for judicial review of the decision communicated by the 2013 Notice (“the 2013 Decision”). The 2015 Letter sets out the reasons for a fresh decision (“the 2015 Decision”). If the 2013 Decision is unlawful, I have to consider whether the 2015 Decision is lawful. If it is, then there would be no point in requiring the Secretary of State to reconsider the application yet again.

In immigration cases, the making of fresh decisions in this way, and their consideration by this court, is “commonplace”, as Judge Storey said in the Upper Tribunal case of Heritage v. Secretary of State for the Home Department [2014] UKUT 441 (IAC), to which Mr. Hansen referred. (He also referred to R. (Hafeez) v. Secretary of State for the Home Department [2014] EWHC 1342 (Admin), at para. 34-36, which was another example of this practice, as was R. (Iqbal) v. Secretary of State for the Home Department [2014] EWHC 1822 (Admin), to which Mr. Saini referred on a different point.)

In both the 2013 Notice and the 2015 Letter the Secretary of State first considered whether the Claimant satisfied the requirements of Section R-LTRP (eligibility for limited leave to remain as a partner) of Appendix FM to the Immigration Rules, which provides as follows:

“R-LTRP.1.1. The requirements to be met for limited leave to remain as a partner are:

the applicant and their partner must be in the UK;

the applicant must have made a valid application for limited or unlimited leave to remain as a partner; and either

(a)

the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and

(b)

the applicant meets all of the requirements of Section E-LTRP: Eligibility for leave to remain; or

(c)

the applicant meets the requirement of paragraphs E-LTRP.1.2.-1.12. and

(d)

paragraph EX.1 applies.”

The Claimant satisfied the requirements of sub-paragraphs (a) and (b) of paragraph R-LTRP.1.1. He did not satisfy the requirements of sub-paragraph (c), because he was an overstayer (contrary to the requirements of paragraph E-LTRP.2.2.). The Secretary of State therefore considered whether the Claimant satisfied the requirements of sub-paragraph (d), which in turn required considering whether paragraph EX.1 applied. Paragraph EX.1 provides as follows:

“EX.1 This paragraph applies if:

(a)…

(b)

the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.”

Accordingly, the Secretary of State considered whether there were “insurmountable obstacles” to family life with Miss McDonald continuing outside the United Kingdom. The Secretary of State concluded that there were not and that paragraph EX.1 did not apply.

Mr. Saini submitted that the effect of certain recent decisions was that the fact that Miss McDonald was an EU citizen meant that it was not open to the Secretary of State to reach this conclusion. Mr. Saini submitted that, because Miss McDonald is a British, and therefore an EU, citizen, the Secretary of State was not entitled either (a) to require her to relocate outside the EU or (b) to submit that it would be reasonable for her to do so.

Miss McDonald is a British citizen and is therefore an EU citizen by virtue of Article 20 of the Treaty on the Functioning of the European Union, which states:

“1.

Citizenship of the Union is hereby established. Every person holding the nationality of a member state shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

2.

Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

(a)

the right to move and reside freely within the territory of the Member States;

(b)

the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;

(c)

the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;

(d)

the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.

These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.”

Recent decisions of the European Court of Justice establish two propositions of European law which were not contested before me:

This second proposition is an aspect of what is sometimes referred to as “the Zambrano principle”, following the case of Ruiz Zambrano v. Office national de l’emploi [2012] QB 265 (“Zambrano”), in which the European Court of Justice stated its conclusions as follows (at paragraphs 41-45):

“41 As the court has stated several times, citizenship of the European Union is intended to be the fundamental status of nationals of the member states: see, inter alia, Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve (Case C-184/99) [2002] ICR 566 , para 31; Baumbast v Secretary of State for the Home Department (Case C-413/99) [2003] ICR 1347 , para 82; the Garcia Avello case, para 22; the Chen case, para 25; and the Rottmann case, para 43.

42 In those circumstances, article 20 of the FEU Treaty precludes national measures which have the effect of depriving citizens of the European Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the European Union: see, to that effect, the Rottmann case, para 42.

43 A refusal to grant a right of residence to a third country national with dependent minor children in the member state where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.

44 It must be assumed that such a refusal would lead to a situation where those children, citizens of the European Union, would have to leave the territory of the European Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the European Union, having to leave the territory of the European Union. In those circumstances, those citizens of the European Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the European Union.

45 Accordingly, the answer to the questions referred is that article 20 of the FEU Treaty is to be interpreted as meaning that it precludes a member state from refusing a third country national on whom his minor children, who are European Union citizens, are dependent, a right of residence in the member state of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.”

The European Court of Justice referred briefly to Zambrano in its decision in Case C-434/09 McCarthy [2011] ECR I-3393, when it said that:

“In that regard, by contrast with the case of Ruiz Zambrano, the national measure at issue in the main proceedings in the present case does not have the effect of obliging Mrs McCarthy to leave the territory of the European Union. Indeed, as is clear from paragraph 29 of the present judgment, Mrs McCarthy enjoys, under a principle of international law, an unconditional right of residence in the United Kingdom since she is a national of the United Kingdom.”

The European Court of Justice gave further consideration to its decision in Zambrano in Case C-256/11 Dereci and others [2011] ECR 1-11315 (“Dereci”). The questions referred to the Court in that case for a preliminary ruling included the following:

“Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country – whose spouse is a Union citizen – residence in the Member State of residence of that spouse, who is a national of that Member State, even in the case where that Union citizen is not dependent on the national of a non-member country for his or her subsistence? (Heiml and Maduike cases)”

In considering this and related questions, the Court held as follows:

“64.

On this basis, the Court has held that Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status (see Ruiz Zambrano, paragraph 42).

65.

Indeed, in the case leading to that judgment, the question arose as to whether a refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside and a refusal to grant such a person a work permit have such an effect. The Court considered in particular that such a refusal would lead to a situation where those children, who are citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. In those circumstances, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union (see Ruiz Zambrano, paragraphs 43 and 44).

66.

It follows that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of European Union citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.

67.

That criterion is specific in character inasmuch as it relates to situations in which, although subordinate legislation on the right of residence of third country nationals is not applicable, a right of residence may not, exceptionally, be refused to a third country national, who is a family member of a Member State national, as the effectiveness of Union citizenship enjoyed by that national would otherwise be undermined.

68.

Consequently, the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.

69.

That finding is, admittedly, without prejudice to the question whether, on the basis of other criteria, inter alia, by virtue of the right to the protection of family life, a right of residence cannot be refused. However, that question must be tackled in the framework of the provisions on the protection of fundamental rights which are applicable in each case.

….

74.

In the light of the foregoing observations the answer to the first question is that European Union law and, in particular, its provisions on citizenship of the Union, must be interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.”

It is apparent from these decisions that, in the context of the proposed removal of a non-EU citizen from a Member State, the effect of the “Zambrano principle” is that the State will be prohibited from removing the non-EU citizen if his or her removal would have the effect that an EU citizen would have to, or be obliged to, leave the EU.

This is how the Court of Appeal explained Zambrano in Harrison v. Secretary of State for the Home Department [2013] 2 C.M.L.R. 23; [2012] EWCA Civ 1736 (“Harrison”). After citing paragraphs 41 to 45 of the judgment in Zambrano, Elias L.J. said as follows (at paragraph 19):

“In my judgment by referring to action which deprives children of the “substance of the right” the Court is intending to say that the right may be infringed if in practice the children will be forced to leave with their ascendant relative even though they could in theory, as a matter of strict law, remain in the state of which they are nationals. It would be no answer for the state to say that the parents should be denied the right to remain because the children can be adopted, for example. That approach of the Court is consistent with a fundamental tenet of EU jurisprudence which is that it always looks at substance rather than form.”

The Upper Tribunal (Blake J. and Judge Jordan) gave a similar explanation of Zambrano in Sanade v. Secretary of State for the Home Department [2012] Imm. A.R. 597; [2012] UKUT 48 (“Sanade”), as follows (at paragraphs 83 and 84):

“83 … It seems to us that the Court of Justice was applying the principle of international law that a citizen cannot be expelled from their own state in any circumstances, to citizenship of the European Union and concluding that a measure that required an EU citizen to leave the Union would be contrary to EU law.

84.

In Zambrano, there was no suggestion that the children as Belgian citizens, could be expelled from Belgium. Nor, as Union citizens, could they be expelled from the Union as a whole and, had there been a decision made by the Belgian authorities to that effect, it would have been justiciable by the Court of Justice. But the Court went further: the expulsion of their Colombian parents (not citizens of the Union) amounted to the children's constructive expulsion from the Union. The Court was not therefore directly applying Article 20 which is non-derogable but granting rights to non-Union citizens necessary to give effect to the rights of Union citizens. …”

Sanade concerned the cases of 3 non-UK nationals, each of whom had committed a criminal offence, as a result of which the Secretary of State proposed to deport them. In arguing that they should not be deported, each relied on their family life in the United Kingdom, including the fact that he was married to a British citizen and was the father of minor children who were British citizens. However, following Dereci, the Upper Tribunal held that the Zambrano principle did not apply on the facts of Sanade, for the following reasons:

“89.

In the present cases the mothers of all of the British citizen children are citizens themselves and cannot be removed as family members of a person facing deportation or in their own right. Although the removal of the father would have adverse economic impact on all the families, as well as the interests of each child living in a household with its father, it cannot be said that either the children or their mothers will be required to leave with him. There is an analogy with the case of Mr Dereci who was found not to have a Zambrano right of residence. Economic reasons for maintaining family unity are not sufficient.

90.

We recognise that the appellants have submitted by way of reply that according to the Advocate General's opinion an impairment of the exercise of the Treaty right of residence may suffice to engage the Zambrano principle. This was not how the Court answered the question, however, and in our judgment, if on the facts removal of the appellant will not require the children or spouse to follow because they have no capacity for exercising their Treaty rights independent of the person facing removal, what is being impaired is not the right to reside in the EU but the right to enjoy family life whilst so residing.

91.

Each of the children are not accordingly dependent on their fathers for the exercise of their Union rights of residence and removal of the fathers will not deprive them of the effective exercise of that right of residence in the United Kingdom or elsewhere in the Union.”

In the present case, it was not the case that Miss McDonald was dependent on the Claimant or that she would be required to leave the United Kingdom if he were removed to Jamaica. It follows that the Zambrano principle did not require the Secretary of State to give the Claimant a right of residence in the United Kingdom.

However, Mr. Saini contended that Miss McDonald’s British and EU citizenship remains relevant to the assessment of the present case under Article 8 ECHR. As to that, the Upper Tribunal said as follows in Sanade:

“92.Cases where the remaining parent not facing removal is either a British citizen or a third country national will be governed by Article 8. It is in that context that the nationality of the remaining parent as well as that of the child has relevance.

93.

Finally, we note that a further question on which we asked for the respondent's assistance was in these terms:

“Does the respondent agree that in a case where a non-national parent is being removed and claims it is a violation of that person's human rights to be separated from a child with whom he presently enjoys family life as an engaged parent, that a consequence of the CJEU's judgment is that it is not open to the respondent to submit that an interference can be avoided because it is reasonable to expect the child (and presumably any other parent/carer who is not facing deportation/removal) to join the appellant in the country of origin? If not why not?”

94.

To this Mr Devereux replied on 24 November 2011:

“We do accept, however, that in a case where a third country national is unable to claim a right to reside on the basis set out above it will not logically be possible, when assessing the compatibility of their removal or deportation with the ECHR to argue that any interference with Article 8 rights could be avoided by the family unit moving to a country which is outside of the EU”.

95.

We shall take this helpful submission into account when we consider the application of Article 8 to each appellant's case. We agree with it. This means that where the child or indeed the remaining spouse is a British citizen and therefore a citizen of the European Union, it is not possible to require them to relocate outside of the European Union or to submit that it would be reasonable for them to do so. The case serves to emphasise the importance of nationality already identified in the decision of the Supreme Court in ZH (Tanzania). If interference with the family life is to be justified, it can only be on the basis that the conduct of the person to be removed gives rise to considerations of such weight as to justify separation.”

I have emphasised the words which were relied upon by Mr. Saini. In reliance on those words, he argued, in effect, that:

I note, however, that in its subsequent decision in Secretary of State for the Home Department v. Izuazu [2013] Imm. A.R. 453; [2013] UKUT 45 (IAC) the Upper Tribunal did not regard the Secretary of State as precluded in this way. That case concerned a Nigerian national who had married a British citizen, Mr. Akinola. It is plain from the Upper Tribunal’s decision that the fact that Mr. Akinola was a British citizen did not preclude the Secretary of State from submitting that it was reasonable to expect him to relocate to Nigeria.

The Upper Tribunal held (in paragraphs 73 and 74) that the Immigration Judge made no error of law either in considering, or in reaching his conclusion, on the question whether it was reasonable to expect Mr. Akinola to relocate to Nigeria. There was no suggestion by the Upper Tribunal that the Secretary of State was not entitled to argue this question. Indeed, the Upper Tribunal concluded (in paragraph 83) that the Secretary of State’s submissions on this issue were to be preferred, holding that:

“It is not unreasonable for him to have to decide between retaining his residence in the United Kingdom and following his wife to Nigeria for the time being to continue family life there.”

Moreover, in paragraph 85 of its decision in Izuazu, the Upper Tribunal distinguished its decision in Sanade as follows:

“The facts are materially different from those of the case of the successful appellant in Sanade where it was not reasonable to expect the spouse to leave the EU as in that case the claimant had been granted indefinite leave to remain before committing the offence and requiring the mother to leave would also require the minor children to be compelled to do so. The UKBA continues to accept that EU law prevents the state requiring an EU law citizen from leaving the United Kingdom, although contends with good reason, that this is to be distinguished from a case where an independent adult can chose between continued residence in the United Kingdom or continued cohabitation abroad.”

Mr. Saini’s submission is also inconsistent with the decision of the Court of Appeal in Harrison. There were two appellants in Harrison. The first (Damion Harrison) was one of the individuals whose cases were considered by the Upper Tribunal in Sanade. The other appellant (AB) was a national of Morocco who was the partner of a British citizen and, with her, the father of British citizens. AB was subject to a deportation order. In dealing with AB’s Article 8 claim, Deputy Immigration Judge Lewis had found, inter alia, that “It would be hard for the family to move to Morocco, but there were no insurmountable obstacles to their doing so” (see Harrison at paragraph 36).

There is no suggestion in Harrison that it was wrong to consider the “insurmountable obstacles” issue in AB’s case. Counsel for AB and Harrison sought to rely on the Zambrano principle, but received the following answer from Elias L.J. (in paragraph 63):

“I agree with Mr Beal QC, counsel for the Secretary of State, that there is really no basis for asserting that it is arguable in the light of the authorities that the Zambrano principle extends to cover anything short of a situation where the EU citizen is forced to leave the territory of the European Union. If the EU citizen, be it child or wife, would not in practice be compelled to leave the country if the non-EU family member were to be refused the right of residence, there is in my view nothing in these authorities to suggest that EU law is engaged. Article 8 Convention rights may then come into the picture to protect family life as the Court recognised in Dereci [2012] 1 c.m.l.r. 45, but that is an entirely distinct area of protection.”

Mr. Saini also submitted that the Secretary of State’s consideration of the “insurmountable obstacles” issue was flawed because:

The 2013 Notice quoted paragraph EX.1(b) of Appendix FM and continued as follows:

“You arrived in the UK on 26^th May 2001. You are currently in the UK illegally.

You have no children in the UK.

The nature of your claimed relationship with Louise Mc Donald has been considered. However, it is not accepted that there are insurmountable obstacles preventing your relationship from continuing in Jamaica. There are many medical hospitals in Jamaica, both State-funded and in the private sector that could continue treatment for Miss Mc Donald with her current medical state.”

The 2015 Letter said as follows:

“It is accepted that your client is in a genuine and subsisting relationship with his partner, Louise McDonald, so the question to be considered is whether there are any insurmountable obstacles which prevent your client’s relationship with his partner continuing in Jamaica.

It is accepted that insurmountable obstacles are not insurmountable in a literal sense – “it is … the degree of difficulty the couple face rather than the surmountability of the obstacle that is the focus of judicial assessment” MF (Nigeria) [2013] EWCA Civ 1192 where the Court of Appeal endorsed what was said by the UT in Izuazu [2013] UKUT 000045 (IAC).

When considering the question of Insurmountable obstacles, the guidance contained in paragraph 3.2.7c of the then current IDI (Jan 2013) has also been taken into account.

It is noted that there would be no language barrier for Ms McDonald in relocating to Jamaica and she would be able to maintain relationships with family and friends via telephone calls, internet and visits.

Your client maintains that Ms McDonald suffers from a serious medical condition which constitutes an insurmountable obstacle to their relationship continuing in Jamaica. …”

The 2015 Letter then went on to consider information as to healthcare provision in Jamaica. Miss McDonald’s health, and, to a lesser extent, the Claimant’s own health, were the principal issues raised in the Claim Form by way of challenge to the 2013 Decision. In the event, these points did not feature significantly, if at all, in Mr. Saini’s submissions to me. It is relevant to note, however, that the consideration of Miss McDonald’s health in the 2015 Letter concluded as follows:

“It is also noted that Ms McDonald is said to be in gainful employment despite her medical conditions and it is therefore considered that those medical conditions are not an insurmountable obstacle to relocation.”

I see no basis for the claim that the Secretary of State asked herself the wrong question. Mr. Saini relied on the judgment of Sedley LJ in LM (DRC) v. Secretary of State for the Home Department [2008] I.N.L.R. 254 (“LM (DRC)”) as authority for the proposition that the expression “insurmountable obstacle” is not to be taken literally. However, he accepted that it was not taken literally in the 2015 Letter and that the second paragraph from the 2015 Letter which I have quoted was “quite in harmony with” LM (DRC). I see no basis for concluding that it was taken literally in the 2013 Notice.

Mr. Saini also relied on paragraph 14 of the judgment of Sullivan LJ in MA (Pakistan) v Secretary of State for the Home Department [2010] I.N.L.R. 287 as indicating that the Secretary of State should have asked whether it was reasonable to expect Miss McDonald to move to Jamaica in all the circumstances. However, in my judgment, there is nothing in the 2013 Notice or the 2015 Letter to indicate that the Secretary of State applied too high a test or made any material error when considering the “insurmountable obstacles” issue.

It is relevant to note that the onus was on the Claimant, when making his application, to identify and provide evidence for any alleged “insurmountable obstacles”. He did so by way of a letter from his then solicitors dated 4 January 2013. That letter did not contain much support for the matters which are now alleged to have constituted “insurmountable obstacles”. In particular:

Against that background, I am not satisfied that any further or different consideration was required of the “insurmountable obstacles” issue than is to be found in the 2013 Notice or the 2015 Letter.

Having considered whether the Claimant satisfied the requirements of Section R-LTRP of Appendix FM to the Immigration Rules, the Secretary of State then went on in both the 2013 Notice and the 2015 Letter to consider whether the Claimant was entitled to leave to remain under rule 276ADE of the Immigration Rules. To be entitled to leave to remain under that rule, the Claimant had to satisfy the requirements of sub-paragraphs (i), (ii) and either (iii), (iv), (v) or (vi) of the rule. It was not in dispute before me that the Claimant:

Thus, the only issue concerned sub-paragraph (vi), which requires that the Claimant:

“Is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.”

Mr. Saini referred to paragraphs 123 to 125 of the Upper Tribunal’s determination in Ogundimu v. Secretary of State for the Home Department [2013] Imm. A.R. 422; [2013] UKUT 60 (IAC), which consider the meaning of “ties” and the nature of the assessment which the Defendant has to conduct. The Upper Tribunal acknowledged in paragraph 125 that “each case turns on its own facts”, and the facts of this case are very different from that case.

In this case, the Claimant was born in Jamaica and lived there for 24 years. He must have had some ties to Jamaica when he left Jamaica for the UK. The onus was on the Claimant to provide evidence that he had completely lost those ties over the intervening years. However, despite setting out the provisions of rule 276ADE(vi), the letter of 4 January 2013 was silent on this point.

In the 2013 Notice, the Defendant said as follows:

“You last entered the United Kingdom on 26^th May 2001 aged 24 and cannot show that you have no social or cultural ties to your home country.”

In the 2015 Letter, the Defendant said as follows:

“It is not accepted that having spent 24 years of his life in Jamaica he will have lost all social cultural and family ties in the time he has been in the UK.”

In the light of the way in which the Claimant’s application was formulated in the letter of 4 January 2013, I am satisfied that the Defendant considered this issue adequately.

I do not accept Mr. Saini’s submission that, in order to consider the nature and extent of the Claimant’s ties with Jamaica, the Defendant was obliged to consider and “counterbalance” the nature of his ties with the United Kingdom. Ties, even strong ties, to the United Kingdom do not in themselves disprove the existence of ties, even strong ties, to another country. Many people have ties to more than one country. The question which the Defendant had to consider, and did consider, was whether the Claimant had ties to Jamaica.

An applicant who is not entitled to leave to remain under the Immigration Rules may still be entitled to leave to remain granted by the Secretary of State outside of the rules in order to ensure that there is no breach of Article 8 ECHR. The approach to be adopted by the Secretary of State in such cases has been considered in a number of cases and was helpfully summarised by Judge Grubb in R (Aliyu) v Secretary of State for the Home Department [2014] EWHC 3919 (Admin) at paragraphs 32 to 61, which both parties were content for me to adopt.

The 2013 Notice did not expressly refer to any separate consideration of the Claimant’s application under Article 8 outside the Immigration Rules. The 2015 Letter did, in the following terms:

“It has also been considered whether there are any exceptional or compassionate circumstances which would lead to unduly harsh consequences for your client on return to Jamaica, such as would be disproportionate in terms of Article 8. Consideration has been given to the guidance in paragraph 3.2.7d of the relevant IDI as in place in January 2013. The medical conditions suffered by Mr. Stewart’s partner were fully considered above and, given the evidence provided and the availability of medical treatment in Jamaica it is not accepted that this constitutes a circumstance which would lead to unduly harsh consequences on return to Jamaica such as would be disproportionate in terms of Article 8.

No other issues have bene raised in terms of exceptional or compassionate circumstances. Accordingly it is not considered that leave should be granted outside the Immigration Rules.”

Mr. Saini referred to the case of Chikwamba v Secretary of State for the Home Department [2008] 1 W.L.R. 1420 (“Chikwamba”) and contended that the Secretary of State had failed to consider the effect of the (alleged) fact that, if he were returned to Jamaica, the Claimant would be entitled to entry clearance. Relying on paragraph 34 of the judgment of Ian Dove QC in R. (Iqbal) v. Secretary of State for the Home Department [2014] EWHC 1822 (Admin), he submitted that this was an issue which the Secretary of State ought to have addressed when considering the exercise of her residual discretion to grant leave to remain outside the Immigration Rules, and he further submitted that the Secretary of State ought to have concluded that it was disproportionate to remove the Claimant from the United Kingdom in circumstances where he would be certain to be granted entry clearance to allow him to return from Jamaica.

The development of this issue was as follows:

In these circumstances, I am not prepared to assume that such an application would be certain to succeed. It follows that there is no merit in Mr. Saini’s submission.

The Claimant contended as follows in the Claim Form:

“Right of Appeal

The Claimant contends that the Defendant acted unlawfully in failing to issue an immigration decision after refusing the Claimant’s application for leave to remain in the United Kingdom on Article 8 ECHR grounds.”

This contention was unarguable, in the light of the Court of Appeal’s decision in R. (Daley-Murdock) v. Secretary of State for the Home Department [2011] I.N.L.R. 621, and Mr. Saini did not pursue it before me.

Instead, Mr. Saini contended that the Defendant had acted contrary to the policy set out in her guidance entitled “Requests for removal decisions”.

However, that policy did not apply to the Claimant and, even if it had applied, would not have required the Defendant to decide to remove the Claimant from the United Kingdom.

As to the application of the guidance, it is stated on page 2 that:

“This guidance only applies where a person:

•

has made a valid “out of time” application for leave to remain which has been refused

•

did not receive a removal decision when the application for leave to remain was refused

•

failed to leave the UK voluntarily

•

has requested in a PAP, or letter before action, that a removal decision is made.”

The last of these bullet points was not satisfied in the present case.

As to the effect of the guidance, it is stated on page 5 that:

“You can make a removal decision when requested in the following cases:

•

The refused application for leave to remain included a dependant child under 18 who has been resident in the UK for three years or more

•

The applicant has a dependant child under the age of 18 who is a British citizen

•

The applicant is being supported by the UK Border Agency or has provided evidence of being supported by a local authority (under section 21 of the National Assistance Act 1948 or section 17 of the Children Act 1989), or

•

There are other exceptional and compelling reasons to make a removal decision at this time”

Mr. Saini contended that the last of these bullet points applied in the present case. I am not satisfied that it did. There do not appear to me to be any “exceptional and compelling reasons to make a removal decision at this time”.

For the reasons set out above, this application for judicial review is dismissed. There was no error of law in the 2013 Notice, but, even if there were, I would decline to grant any relief in the light of the 2015 Letter.