AK & Anor v The Secretary of State for the Home Department

The appellants are nationals of Turkey , born (respectively) on 27 May 1975 and 29 August 2007. They appeal against a decision of Judge of the First-tier Tribunal Kelley who, in a determination promulgated 26 October 2018 following a hearing on 8 October 2018, dismissed their appeals against a decision of the respondent of 6 April 2 0 16, t o refuse their applications of 8 December 2015 for leave to remain (“LTR”) in the United Kingdom as the spouse and child (respe c t ively ) of Mr A K (hereafter the “sponsor”) . The sponsor is a Turkish national with indefinite leave to remain (“ILTR") granted under the Immigration Rules that were in force (the "standstill provisions") as at the date of the European Communities Turkish Association Agreement ( the “ Ankara Agreement” ) . He was granted ILTR as a sell-employed business person. The second appellant is the son of the first appellant and the sponsor.

The appellants appealed on the only statutory ground available to them, namely that the decision was unlawful under section 6 of the Human Rights Act 1998.

The judge found that the appellants enjoyed family life with the sponsor. He found that, as the first appellant was in the United Kingdom without LTR , she had to satisfy the requirements of EX.1 (b) of Appendix FM, i.e. that there were insurmountable obstacles to family life continuing in Turkey . He was not satisfied that there were such insurmountable obstacles. He found that the second appellant was not a “ qualifying child ” for the purposes of EX.1 (a) , having only lived in the United Kingdom for 4 years . The appellants have not challenged these findings.

The judge then considered the Article 8 claim outside the Immigration Rules . He was not satisfied that there were any compelling or exceptional circumstances that warrant ed a grant of discretionary LTR under Article 8 outside the Immigration Rules .

The grounds only challenge the judge's finding that the decision was not disproportionate in his assessment of Article 8 outside the Immigration Rules . They may be summarised as follows:

The sponsor arrived in the United Kingdom on a visit visa in August 2010 . He then applied for and was granted further LTR as a business person under the standstill provisions.

The appellants entered the United Kingdom on 12 August 2014 with entry clearance visas to join the sponsor as his dependent wife and son. All three then applied for ILTR. The sponsor's application was granted on 29 April 2015 but the appellants’ applications were refused in a decision letter dated 29 April 2015 because they did not meet the 2-year residence requirement under Home Office guidance issued in 2011 for dependants of business persons granted leave under the standstill provisions . On 15 May 2015, the appellants again applied for LTR as the dependants of a Turkish national business person . This application was refused on 11 November 2015.

The appellants then made their applications of 8 December 2015 for LTR that were the subject of the appeal before the judge. It is plain that these applications were applications for LTR on the basis of their rights under Article 8 of the ECHR . The application form (hereafter the “Application”) , signed and dated 8 December 2015, was accompanied by a letter dated 8 December 2015 from Stoke White (pages 55-60 of the appellant’s bundle), who were then acting for the appellants (hereafter the “ Letter of application ”). The opening paragraph of this letter reads:

The remainder of the Letter of Application explains why it was considered that the appellants’ applications for LTR on their basis of the ir rights under Article 8 should be granted. There is no mention that they satisfy any of the requirements under the standstill provisions or the then applicable Home Office guidance relating to the requirements for LTR as dependants of Turkish nationals who have been granted leave as business persons under the standstill provisions .

On 6 July 2018, i.e. in the period between the date of the decision and the date of the hearing before the judge, Appendix ECAA of the Immigration Rules came into force. This sets out the requirements to be met for the grant of ILTR to Turkish nationals who have been granted LTR under the “ECAA worker” or the “ECCA business” category (as defined in Appendix ECAA) and their partners and children. Needless to say, as Appendix ECAA was not in force then, it was not mentioned in the Application or the Letter of Application nor was it considered by the respondent.

It is not necessary to summarise the judge's reasons for concluding that the appellants did not satisfy the requirements for LTR under the Immigration Rules because his findings in this regard have not been challenged.

Nor is it necessary to summarise the judge's reasons for concluding, following his assessment of the Article 8 claims outside the Immigration Rules, that the decision was not disproportionate. If I decide that the judge did err in his assessment of proportionality as contended in ground 1 and/or ground 2, it would follow that his assessment of proportionality would be set aside. It would then be necessary to re-assess proportionality. Neither Mr Canter nor Mr Clarke sought to suggest otherwise.

Paras 22-24 of the judge's decision are relevant to the grounds of appeal. They read:

During the course of submissions, I was referred to ss.82, 85 and 120 of the 2002 Act. Section 84 is also relevant. These provide:

S ection 82 and 85 were considered by the Vice President and Upper Tribunal Judge Jackson in Mahmud (S. 85 NIAA 2002 – ‘new matters’) [2017] UKUT 00488 (IAC). The judicial head-note read s :

Paras 29-31 of Mahmud are also helpful. They read:

Mr Canter submitted that , applying Mahmud , the appellants’ reliance on Appendix ECAA did not constitute a “ new matter ” within the meaning of s.85(6) . The factual matrix upon which the appellants relied in connection with the requirements of Appendix ECAA was drawn to the respondent's attention in the Letter of Application and was considered by the respondent in the decision letter challenged in the instant appeals . Given that Appendix ECAA was not in existence at the relevant time, there was no specific reference to it in the Letter of Application and the decision letter .

Mr Canter submitted that the judge should have considered whether the appellants met the requirements of Appendix ECAA in order to assess the proportionality of the decision outside the Immigration Rules. If they satisfied these requirements, this was a weighty consideration when assessing proportionality. It is clear from para 23 of the judge's decision that he refused to consider whether the appellants satisfied the requirements of Appendix ECAA. In doing so, he materially erred in law.

In response, Mr Clarke referred me to para 23 of the judge's decision which, he submitted, sets out what was argued before him in relation to Appendix ECAA. Para 23 shows that there were two limited aspects of the appellants ’ case on Appendix ECAA. He submitted that the case advanced to the judge in relation to Appendix ECAA did not concern proportionality but the lawfulness of the respondent's decision. However, the judge did not have jurisdiction to consider whether the respondent's decision was lawful. In any event, the respondent's decision could not be unlawful for failure to consider Appendix ECAA given that Appendix ECAA was not in existence then. It was not suggested to the judge on the appellants’ behalf that part 7.1 of Appendix ECAA was relevant to proportionality under Article 8.

Mr Clarke submitted that an application for LTR under Appendix ECAA or the standstill provisions was not a human rights application . He submitted that this followed from the judgment of the Court of Appeal in SSHD v CA ( Turkey ) [2018] EWCA Civ 2875 . The appellants had not submitted statements under s.120 of the 2002 Act raising Appendix ECAA after it came into force on 6 July 2018. Accordingly, any reliance upon Appendix ECAA before the judge would constitute a new matter. As the respondent was not represented before the judge, consent was not given. He therefore submitted that the judge had no jurisdiction to consider Appendix ECAA. Accordingly, any failure by the judge to consider it was immaterial.

Upon my pressing him to give me a clear answer, Mr Clarke eventually accepted that para 9 of grounds correctly distils from Appendix ECAA the requirements that the appellants had to satisfy under Appendix ECAA. Para 9 of the grounds reads:

On being pressed, Mr Clarke also accepted that the appe llants appear to meet Part 7.1 although he stressed that this could not bind any decision-maker in any subsequent application by the appellants under Appendix ECAA. He reminded me that they had not made any application for LTR under Appendix ECAA. Furthermore, he submitted that the respondent's decision could not be regarded as disproportionate on this basis because they have the option of making an in-country application for LTR under Appendix ECAA. The possibility of making an in-country application means that the decision would not interfere with any family life or private life , in his submission.

In relation to ground 2, Mr Clarke accepted that the judge's reasoning at para 22 for not considering the principle in Chikwamba was in error. However, h e submitted that this w as not material because: (i) the appellants had not argued before the judge that they meet the criteria for the grant of entry clearance under Appendix ECAA ; (ii) in any event, Appendix ECAA is not applicable to entry clearance applications because it only applies to in-country applications for LTR; and (iii) as the appellants had not submitted English language test certificates, they could not satisfy the requirements for entry clearance under Appendix FM on the evidence before the judge.

In response, Mr Canter submitted that it was not necessary for the appellants to serve a s.120 statement following the introduction of Appendix ECAA . Section 120 requires applicants to notify the respondent if there had been a change in their circumstances. There had been no change in their circumstances. W hat had changed was the introduction of Appendix ECAA. The Secretary of State must have been aware that his own Immigration Rules had changed with the introduction of Appendix ECAA. T he appellants’ factual matrix remained the same. The factual matrix upon which they relied was always based on their relationship with the sponsor who had obtained ILTR as a Turkish business person. The reason why the y made their applications for LTR on human rights grounds was that an earlier application for LTR as dependants of a Turkish business person was refused because they had then only lived in the United Kingdom for 4 months and therefore did not meet the 2-year residence requirement .

With regard to the judge's summary of the submissions advanced on the appellants’ behalf in relation to Appendix ECAA, Mr Canter said that he had to accept that para 23 of the judge's decision shows that the argument advanced by the appellants ’ Counsel before the judge related to the legality o f the respondent's decision. However, he submitted that this did not affect the appellants’ case that, where a judge considers a human rights appeal, the judge is obl ig ed to look at the Immigration Rules and consider whether the appellant satisf ies the requirements of the Immigration Rules because it is a weighty factor in the appellant’s favour in the assessment of proportionality outside the Immigration Rules if the requirements are satisfied.

In relation to ground 2, Mr Canter said that it appears that there were no English language test certificates before the judge. However, in his submission, the judge should nevertheless have considered the fact that the remaining criteria for the grant of entry clearance were satisfied . He submitted that, to all intents and purposes, the appellants satisfied the requirements for the grant of entry clearance.

Mr Canter submitted that Mr Clarke’s submission that the decision does not interfere with the appellants’ rights under Article 8 because they are able to submit in-country applications for LTR under Appendix ECAA means that the appellants would be left to suffer the inconvenience and expense of making another application during which time they would be left without LTR.

I reserved my decision.

In relation to Mr Clarke's reliance upon the fact that the appellants had failed to submit statements under s.120 of the 2002 Act in which they relied upon Appendix ECAA after it came into f orce on 6 July 2018 , Mr Canter submitted that they were not under a duty to do so because their circumstances had not changed and that what had changed was that the Immigration Rules had bee n amended with the introduction of Appendix ECAA.

I agree with Mr Canter that the appellants were not under a duty to submit statements under s.120 but for a different reason. The duty under s.120(5) to inform the Secretary of State if an individual has additional reason s for wishing to remain in the United Kingdom only arises if the Secretary of State has decided to exercise his discretion under s.120(2) and issue a notice . In Lamichhane v SSHD [2012] EWCA Civ 260, the Court of Appeal held that the service of a section 120 notice is at the discretion of the Secretary of State . This was followed in TY ( Sri Lanka ) v SSHD [2015] EWCA Civ 1233 (para 28). It follows that it would not have been open to the appellants to submit s.120 statements of their own volition. There is nothing to suggest that the respondent served any s.120 statements on the appellants.

Before turning to the “new matter” issue, it is worth pointing out that the appellants' case is that, if they were to make an application for LTR under Appendix ECAA, their applications would succeed. It is very difficult to see how the respondent's decision of 6 April 2016 can be said to be disproportionate if all the appellants have to do is to make valid applications for LTR under Appendix ECAA.

I turn to the “new matter” issue, i.e. whether the appellants’ reliance upon Appendix ECAA before the judge constituted a “new matter” within the meaning of s.85(6) .

Mr Canter submitted, in reliance upon para 31 of Mahmud to the effect that “… a new matter is a factual matrix which has not previously been considered by the Secretary of State…” , that the factual matrix upon which the appellants relied in relation to Appendix ECAA (for example as to accommodation, maintenance and their relationship with Mr A K) remained the same as the factual matrix upon which they relied in the Letter of Application .

In Mahmud , the evidence in question concerning which the “ new matter ” issue arose was evidence of the appellant's relationship with a new partner, Ms P, and her sponsor which he first raised in his Notice of appeal . It is therefore not surprising that the Tribunal did not comment upon whether reliance upon a different category of the Immigration Rules in support of a human rights claim amounted to a " new matter ". I entirely agree with the reasoning of the Tribunal concerning the issue that was before it in Mahmud . The Tribunal did not need to consider whether an appellant’s reliance upon a certain factual matrix and a different category of the Immigration Rules to make good his Article 8 claim constituted a “ new matter ” which is precisely the issue in the instant case. There is nothing in Mahmud which relates to the issue I have to decide.

In the instant case, although the application before the respondent was plainly an application for leave to remain on the basis of the appellant's rights under Article 8, the Letter of Application stated that the first appellant could not submit an application under the 5-year partner route because she had not passed her English language test. The letter then proceeded to make submissions as to the reasons wh y th is family unit should not be expected to relocate to Turkey and why it would be in the best interests of the second appellant for him to be permitted to remain in the United Kingdom with his parents. In other words, the Letter of Application relied upon the general considerations that are normally fall for assessment in Article 8 case.

Mr Canter asked me to take into account the fact that the reason why the Letter of Application made no mention of Appendix ECAA was that it was not in existence at that time. Be that as it may, the fact is that the appellants now seek to rely upon what I accept is the same factual matrix as to accommodation, maintenance, their relationship with Mr A K and that he has ILTR as well as the criteria in part 7.1 of Appendix ECAA to establish their Article 8 claim. They now contend, in reliance upon the sa me factual matrix, that: “ My removal is disproportionate and therefore in breach of Article 8 because I meet the requirements of part 7.1 of Appendix ECAA . I could not say this before because Appendix ECAA did not exist when I made my application but the Immigration Rules have since been amended ” whereas their Article 8 claim, as set out in the Letter of Application, was essentially that: “My removal is disproportionate and therefore in breach of Article 8 because it would be unreasonable (and in the case of the second appellant, not in my best interests) to expect me and the remaining members of my family unit to relocate to Turkey to enjoy family life” .

The case the appellants now put on the issue of proportionality in relation to their Article 8 claims requires a new legal judgment to be made as to whether or not they comply with the Immigration Rules. Given the importance of the proposition that compliance with the Immigration Rules is relevant in deciding proportionality, a legal judgment as to whether or not the appellants comply with the Immigration Rules must be recognised as a new factual matter when a new judgment falls to be made based on the same facts.

Such an interpretation is consistent with s.86(6) of the 2002 Act because the appellant s ' reliance upon their satisfaction of the criteria in part 7.1 of Appendix ECAA :

It is also consistent with the policy purpose of s.85(5) which must be to enable the Secretary of State to be the first person to make a judgment as to whether or not an individual satisfies the requirements of the Immigration Rules unless he consents to the Tribunal doing so. To conclude otherwise would run counter to that policy purpose and it would make judges of the First-tier Tribunal first instance decision-makers.

For the reasons given above, and to summarise, I have concluded that, if an appellant relies upon criteria that relate to a different category of the Immigration Rules to make good his Article 8 claim than that relied upon in his application for LTR on human rights grounds or in his s.120 statement such that a new judgment falls to be made as to whether or not he satisfies the Immigration Rules , this constitutes a " new matter " within the meaning of s.85(6) which requires the Secretary of State's consent even if the facts specific to his own case (for example, as to accommodation, maintenance etc) remain the same.

I therefore agree with Mr Clarke that the judge had no jurisdiction to consider whether the appellants satisfy Appendix ECAA. Accordingly, the judge did not err in law in failing to consider whether the appellants satisfied the requirements of Appendix ECAA.

I therefore reject ground 1 on the basis that the judge did not have jurisdiction to consider whether the appellants satisfy the requirements of Appendix ECAA.

If I am wrong and if the judge did have jurisdiction to consider whether the appellants satisfied the requirements of Appendix ECAA, I have concluded that he did not err in law in failing to do so. It is plain from para 23 of his decision that Appendix ECAA was relied upon in order to argue that the respondent's decision was unlawful. It was not argued that they satisfy the requirements of part 7.1 of the Appendix ECAA . He was under no obligation to embark, of his own volition, upon the exercise of considering whether the appellants satisfied the requirements of part 7.1 of the Appendix ECAA.

I therefore reject ground 1 on this alternative basis .

In relation to ground 2, the judge’s reasoning at para 22 simply does not make sense as it runs counter to the logic of the Chikwamba principle. It is clear from R ( Agyarko ) and others v SSHD [2017] UKSC 11 that an individual’s ability to meet the requirements for a hypothetical entry clearance application remains a relevant consideration when considering proportionality. At para 51 of Agyarko , Lord Reed said “ If … an applicant - even if residing in the UK unlawfully - was otherwise certain to be granted leave to enter, at least if an application were made from outside the UK, then there might be no public interest in his or her removal” (my emphasis) . The judgment of the Court of Appeal in Tikka v SSHD [2018] EWCA Civ 642 is more recent confirmation of the Chikwamba principle.

However, the judge's failure to consider the Chikwamba principle is simply immaterial on the facts of the instant case. Even if the judge had had jurisdiction to consider whether the appellants satisfy Appendix ECAA, contrary to my conclusion above, Appendix ECAA does not apply to entry clearance applications. It is evident from a perusal of Appendix ECAA that it only applies to in-country applications for LTR. Any hypothetical application for entry clearance under Appendix FM was bound to fail on the evidence before the judge because the appellants had not submitted any English language test certificates. Mr Canter's submissions, summarised at my para 26 above, simply ignore the fact that entry clearance must be certain to be granted for the Chikwamba to be applied, as is clear from para 51 of Agyarko . Even where entry clearance is certain to be granted, proportionality still has to be considered.

I therefore reject ground 2.

In summary, therefore: