BRITCITS v The Secretary of State for the Home Department [2017] EWCA Civ 368

Case No C4/2016/1894[2017] EWCA Civ 368
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
MR JUSTICE MITTING
CO/3763/2015
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/05/2017
Before
SIR TERENCE ETHERTON, MRLORD JUSTICE DAVISLORD JUSTICE SALES
Between
BRITCITSAppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Nathalie Lieven QC and Duran Seddon (instructed by The Migrants’ Law Project, Islington Law Centre) for AppellantNeil Sheldon (instructed by Government Legal Department) for RespondentHearing Hearing dates: 3 & 4 May 2017
JudgmentSir Terence Etherton, MR:
[1]This is an appeal from the order of Mitting J dated 20 April 2016, by which he dismissed the appellant’s application for judicial review seeking to quash provisions of the Immigration Rules introduced in 2012 on the admission to the UK of adult dependant relatives (“ADRs”) of British citizens, persons settled in the UK and those in the UK pursuant to refugee leave or humanitarian protection (“the new ADR Rules”).[2]The appellant is a United Kingdom charity set up to represent the interests of sponsors and applicants affected by the new Rules on family migration introduced in July 2012 and to campaign to revoke or alter them.

The statutory framework and the new ADR Rules

[3]The Immigration Act 1971 contains the following relevant provisions:
“1. General principles. (1) All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person. (4) ….The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom.” “3. General provisions for regulation and control. (2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).”
[4]Until 9 July 2012, the Immigration Rules made pursuant to section 1(1) of the 1971 Act permitted the admission of ADRs largely on the basis of their financial dependency on UK sponsors and upon their having no other close relatives in their country to whom they could turn for financial support.[5]As from 9 July 2012 the right of an ADR to apply for indefinite leave to enter is now contained in section E-ECDR 2.1 to 2.5 of Appendix FM to the new rules. They provide as follows, so far as relevant:
"E-ECDR.2.1. The applicant must be the- (a) parent aged 18 years or over; (b) grandparent; (c) brother or sister aged 18 years or over; or (d) son or daughter aged 18 years or over, of a person ('the sponsor') who is in the UK. ... E-ECDR.2.3. The sponsor must at the date of application be- (a) aged 18 years or over; and (b) (i) a British Citizen in the UK; or (ii) present and settled in the UK; or (iii) in the UK with refugee leave or humanitarian protection. E-ECDR.2.4. The applicant or, if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, must as a result of age, illness or disability require long-term personal care to perform everyday tasks. E-ECDR.2.5. The applicant or, if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because- (a) it is not available and there is no person in that country who can reasonably provide it; or; (b) it is not affordable."

E-ECDR.2.3. The sponsor must at the date of application be-

[6]Immigration Directorate Instructions (“the Guidance”) contain the following relevant guidance to the new ADR Rules at 2.2.2. with effect from 13 December 2012:
“2.2.2 Unable to receive the required level of care in the country where they are living The ECO [Entry Clearance Officer] needs to establish that the applicant has no access to the required level of care in the country where they are living, even with the practical and financial help of the sponsor in the UK. This could be because it is not available and there is no person in that country who can reasonably provide it, or because it is not affordable. The evidence required to establish this is set out below. If the required level of care is available or affordable, the application should be refused. 2.2.3 No person in the country who can reasonably provide care The ECO should consider whether there is anyone in the country where the applicant is living who can reasonably provide the required level of care. This can be a close family member: Son Daughter Brother Sister Parent Grandchild Grandparent or another person who can provide care, e.g. a home-help, housekeeper, nurse, carer, or care or nursing home. If an applicant has more than one close relative in the country where they are living, those relatives may be able to pool resources to provide the required care. The ECO should bear in mind any relevant cultural factors, such as in countries where women are unlikely to be able to provide such support.”
This can be a close family member: Son Daughter Brother Sister Parent Grandchild Grandparent

The background to the new ADR Rules

[7]The formulation of the new ADR Rules was preceded by a wide consultation exercise. In July 2011 the Home Office published a consultation document entitled ‘Family Migration: A Consultation’. One of the issues on which contributions were sought was whether consideration should be given to “whether there are other ways of parents or grandparents aged 65 or over being supported by their relative in the UK short of them settling here.” The consultation closed in October 2011, and on 11 June 2012 the Home Office published a response. At paragraph 5.3 it was recorded that 42% of respondents agreed that consideration should be given to other ways of relatives supporting their parents or grandparents overseas. The same proportion (42%) disagreed.[8]On 11 June 2012 the Home Office also published a document entitled: “Statement of Intent: Family Migration”, which set out new policies on family migration in light of the consultation, to be reflected in changes to the Immigration Rules: paragraphs 118-125 set out the new approach towards ADRs. So far as relevant, they said as follows: "Adult Dependent Relatives. 118. The new Immigration Rules will change the basis on which non-EEA adult dependent relatives can settle in the UK, in view of the significant NHS and social care costs to which these cases can give rise. ... 121. We will end the routine expectation of settlement in the UK for parents and grandparents aged 65 or over who are financially dependent on a relative here. Non-EEA adult dependent relatives will only be able to settle in the UK if they can demonstrate that, as a result of age, illness or disability, they require a level of long-term personal care that can only be provided in the UK by their relative here and without recourse to public funds. 122. In particular, this will mean:• The applicant must, as a result of age, illness or disability, require long-term personal care: that is help performing everyday tasks, e.g. washing, dressing and cooking;• The applicant must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living because it is not available and there is no person in that country who can reasonably provide it, or because it is not affordable there.• The entry clearance officer must be satisfied that the applicant will be adequately maintained, accommodated and cared for in the UK by the sponsor without recourse to public funds."[9]On 13 June 2012 the Home Office published an Impact Assessment analysing the likely impact of the changes to the family migration rules laid before Parliament on that day. The Impact Assessment addressed, among other things, the impact of:
“For adult/elderly dependants, closing the route to in-country switching and requiring all overseas applicants to demonstrate they require long-term personal care that can only be provided by a relative in the UK.”
The Impact Assessment set out the anticipated costs and benefits of that proposal, including the likely reduction in public service provision.[10]On 13 June 2012 the Home Office published a statement with the title, “Immigration Rules on Family and Private Life: Grounds of Compatibility with Article 8 of the European Convention on Human Rights”. The statement addressed the changes to the rules concerning ADRs (at paras. 81-86), and expressed the conclusion that, in the view of the Home Office, the new ADR Rules were compatible with Article 8.[11]Also on 13 June 2012 the Home Office published a Policy Equality Statement (“PES”) analysing the impact of the changes to the family migration rules laid before Parliament on that day. Pages 23-25 dealt with the new ADR Rules. The PES concluded that: “To the extent any indirect discrimination is not mitigated by the detail of the changes, it is proportionate to achieving the policy objectives, given the NHS and social care costs which can be associated with these cases. For example, based on Department of Health calculations, a person who lives until their 85th birthday can be expected to cost the NHS almost £150,000, with more than 50 per cent of these costs arising between the ages of 65 and 85”.[12]The Statement of Changes in Immigration Rules (HC 194), in which the new ADR Rules are contained, was laid before Parliament on 13 June 2012. It was subject to the negative resolution procedure, including a debate in the House of Lords on 23 October 2012, following which the Opposition withdrew its motion of regret. In addition, the Statement of Changes, including the new ADR Rules, was debated by the House of Commons on 19 June 2012. Following the debate the House unanimously agreed the Government’s motion that, in the context of the qualified right under Article 8, the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.[13]The Statement of Changes (HC 194), including the new ADR Rules, came into force on 9 July 2012.

The proceedings and the judgment of Mitting J

[14]The claim form for judicial review was issued on 10 August 2015. It claimed, among other things, a declaration that the new ADR Rules are unlawful and an order quashing them.[15]At the trial before Mitting J, the appellant argued that sections E-ECDR 2.4 and 2.5 are unlawful on one or all of three overlapping grounds:(1) they are outwith the rule-making power in section 1(4) of the 1971 Act;(2) they are arbitrary and unreasonable; and(3) they are incompatible with Article 8 of the European Convention on Human Rights.[16]In a judgment dated 20 April 2016 of exemplary clarity and conciseness Mitting J rejected all three grounds but gave permission to appeal. With no disrespect to the Judge, it is not necessary to set out his detailed reasoning.

The appeal

[17]There are three grounds of appeal, which in substance mirror those advanced before Mitting J. They are as follows:
“(1) Failing to find that the Respondent had exercised her powers under the Immigration Act [“the 1971 Act”] not for the purpose of promoting the object and policy of the statute but rather in the overriding pursuit of different non-statutory objectives namely the reduction of costs to the National Health Service (the Padfield Ground). (2) Failing to find that the Immigration Rule in issue operates in a self-defeating and partial way, is irrational and thus unlawful; and/or (3) Failing to find that the Immigration Rule in issue is incompatible with Article 8 ECHR and as such falls either to be quashed, or that a declaration should be made as to its non-conformity with Article 8.”
[18]Throughout her submissions Ms Lieven QC, for the appellant, relied on what she described as the paradigm factual situation of a UK citizen with an elderly parent resident outside the UK, who is dependant on the UK citizen, and both the parent and the UK citizen wish the parent’s last years to be spent being cared for by his or her child and enjoying time with his or her grandchildren. There are several examples of such a paradigm case in the written evidence. She submitted that in every such factual situation the parent and the UK citizen enjoy family life within the protection of Article 8 of the Convention.[19]The appellant’s case is that, both as a matter of principle on the wording of the new ADR Rules, and on the evidence, it is almost always impossible in such a paradigm case for the conditions of the new ADR Rules to be fulfilled. Ms Lieven submitted that the Guidance contemplates that the conditions are never satisfied if care can be provided by a paid carer in the parent’s home country. She submitted that this means that the new ADR Rules provide a “Catch 22” situation in that, if the UK citizen can afford to accommodate and provide the necessary care for the parent, then the citizen will virtually always be able to purchase the provision of such care by a home-help, housekeeper, nurse, carer or care or nursing home.[20]Ms Lieven submitted that the critical deficiency in the new ADR Rules is that they make no acknowledgment of the psychological and emotional needs of a parent and which cannot be met by a paid carer. That is linked to another of Ms Lieven’s over-arching submissions, namely that the Rules themselves contain no express provisions for indefinite leave to enter to be granted to an ADR, where the prescribed conditions cannot be satisfied, if there are exceptional circumstances; nor, she submitted, is any such provision for leave to be given in exceptional circumstances contained in the Guidance. She said, in short, that there is no provision in the new ADR Rules for the exercise of any residual discretion by the Secretary of State (“the SoS”).[21]She submitted that the evidence bears out the practical impossibility of satisfying the new ADR Rules in virtually all cases. There are witness statements by three experienced solicitors, each in a different firm, who are specialists in immigration matters. Their evidence is that in virtually all cases they have not felt able to advise clients that an application under the new ADR Rules has a prospect of success. They have, however, had some success in cases where a discretion has been exercised, outside the Rules, in favour of an applicant. Their witness statements also provide evidence that many of the UK sponsors are people who have chosen to settle in this country and whom this country wishes to attract and who have made a contribution to its well-being, and that some of them are thinking about locating to other jurisdictions where there is a greater prospect of success in bringing a dependant elderly parent to live with them. There is also evidence that some sponsors have decided to relocate overseas temporarily, returning to the UK with their ADRs, taking advantage of EU rights of freedom of movement.[22]The appellant relies on a range of other material supporting the proposition that some of the sponsors, particularly medical professionals, have decided or may in the future decide to leave the UK to relocate to countries where the rules for bringing elderly dependant relatives are more flexible; and that some, such as overseas doctors and medical students, may be deterred by the new ADR Rules from coming here. It is not necessary to set out that material in detail, not least because the evidence I have summarised is not challenged.[23]The solicitors have also given evidence that clients are deterred from applying under the new ADR Rules because, if such an application is unsuccessful, it is likely to have a detrimental effect on the applicant’s ability to obtain entry clearance for the UK as a visitor in the future. One of the solicitors, for example, says in her witness statement that, in her experience, visit visa applications, particularly from relatives who are elderly, dependant, widowed, not in good health, needy or isolated, tend to have a high rate of refusal; and the risk of refusal is significantly higher when a visit entry clearance is sought after a settlement visa refusal because the Entry Clearance Officer (“the ECO”) is less likely to believe that the applicant intends to leave the UK at the end of the visit.[24]The appellant relies on the evidence of a number of First-tier Tribunal decisions on appeals under the new ADR Rules. In some of them an appeal was allowed on Article 8 grounds. The appellant has found only two cases where an application under the new ADR Rules has succeeded.[25]Both the solicitor witnesses and a number of other individuals have made witness statements giving evidence of the distress caused to clients and sponsors by refusal or the prospect of refusal of an application under the new ADR Rules.

Ultra vires – the Padfield ground

[26]The appellant contends that the new ADR Rules are outside the scope of section 1(4) of the 1971 Act on the Padfield principle (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997). That contention is advanced on the basis that, on its proper interpretation, section 1(4) of the 1971 Act imposes a duty on the SoS to make provision for the dependants of those lawfully in or entering the UK; but the new ADR Rules, by effectively making it impossible in virtually all cases for a successful application to be made in the paradigm case, fail to do so and run counter to the policy and objectives of the 1971 Act.[27]In identifying those statutory objectives, the appellant relies on the following matters.[28]First, the appellant contends that the rules and practice in place for the admission of dependants prior to and upon the passage through Parliament of the Bill which became the 1971 Act, combined with the Ministerial statement (quoted below) on publication of the Bill, show that the intention was to continue the existing practice relating to the admission of dependants. The appellant says that the Immigration Rules and Instructions in existence before the 1971 Act (as well as those laid before Parliament both prior to and just after it came into force on 1 January 1973) showed that parents had routinely been given entry provided that they met certain criteria (typically, including that they were of a minimum age, wholly or mainly dependant upon children settled in the UK and could be supported in the UK). This demonstrates, the appellant says, that the word “dependants” covered spouses, children and parents.[29]In that regard, the appellant refers to and relies upon Instructions to Immigration Officers pursuant to the Commonwealth Immigrants Acts 1962 and 1968 regarding the admission of Commonwealth nationals (Cmnd 4298, Feb 1970), Instructions to Immigration Officers concerning ‘Aliens’ (Cmnd 4296, Feb 1970) draft Immigration Rules under the Immigration Bill 1971 concerning entry which were laid before Parliament on 23 October 1972 (Cmnd 4606), Immigration Rules on the entry of Commonwealth nationals laid on 25 January 1973 (HC 79), and Immigration Rules on the entry of EEC and other non-Commonwealth nationals laid on 25 January 1973 (HC 81).[30]The Ministerial statement, on which the appellant relies, was made by the Home Secretary on the Immigration Bill on 24 February 1971, the day on which the Bill was published. It contained the following passage:
“I must stress that the Bill will not affect the lives of people already here for permanent settlement. They will be able to continue to live and work here and to bring in their dependants as at present.”
[31]Second, the appellant relies on the “right of abode” under section 1(1) of the 1971 Act, more particularly the right under that sub-section to be free to live in the UK “without let or hindrance”, as colouring the scope and purpose of the section 1(4) duty. The appellant submits that section 1(1) rights are infringed where denial of family reunion interferes with British citizens’ residence in the UK, as is said to be the case where a UK citizen feels compelled to relocate as a result of the denial of admission to an ADR, such as in a paradigm case.[32]The appellant relies, in this regard, on ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 3, [2011] 2 AC 166 in which the Supreme Court, having regard to the description of the right of abode in section 1(1) and the intrinsic importance of British citizenship, held that it was disproportionate to remove a non-national mother, who had care of two British citizen children who would not be able to exercise their rights as citizens if they moved abroad with their mother: see paras. 30, 32, 38, 40-41, 47. Reliance is also placed on the statement of Pitchford LJ in the Court of Appeal in Quila v Secretary of State for the Home Department [2010] EWCA Civ 1482, [2011] Fam Law 232 (from which an appeal to the Supreme Court was dismissed) at [72] that the effect of refusal of entry in that case (in which it was held that the ban in the Immigration Rules on the entry for settlement of foreign spouses between the ages of 18 and 21 was disproportionate and could not lawfully be applied to the claimants) was either the exile of a British national or the disruption of family life.[33]Third, the appellant relies on the following passage in the judgment of Lord Dyson in R (Munir) v Secretary of State for the Home Department [2012] UKSC 32, [2012] 1WLR 2192 (with whom all the other members of the Supreme Court agreed) at [28] as authority that section 1(4) imposes a duty on the SoS to lay down Rules which include provision for each of the classes of person identified in the subsection:
“Section 1(4) states that the rules laid down by the Secretary of State shall include provision for admitting persons coming for the purpose of taking employment, or for purposes of study, or as visitors or as dependants of persons lawfully in or entering the United Kingdom. It is implicit in the wording of this subsection that, in the case of the persons described, the Secretary of State is obliged to lay down rules “as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode”
. It cannot have been the intention of Parliament to leave it entirely to the discretion of the Secretary of State to decide whether to lay down any rules as to her practice, insisting only that, if she decided to do so, the rules should include provision for admitting the classes of person identified in the subsection. If that had been the intention of Parliament, the 1971 Act would have made it clear that the Secretary of State had a power (but not a duty) to lay down rules of practice, but it did not do so.”[34]The appellant contends that, by imposing conditions which effectively preclude a successful application by a dependant parent, the new ADR Rules do not comply with that duty.

Manshoora Begum unreasonableness

[35]The appellant contends that the new ADR Rules are invalid for the same reason as the relevant immigration rule was struck down in R v Immigration Appeal Tribunal ex parte Manshoora Begum [1986] Imm AR 385. That case concerned the refusal of an application by a Pakistani lady under paragraph 52 of the Immigration Rules HC 169 for entry clearance to settle in the UK as the dependant relative of the applicant’s British brother. That Rule imposed the requirement that the relative must have “a standard of living substantially below that of their own country”.[36]The Court (Simon Brown J) accepted the submission that any applicant who was able to satisfy the requirement of being mainly dependant on his or her sponsor, who was able and willing to maintain and accommodate the applicant, was:
“…singularly unlikely to comply with the requirement [contained in the Rules] that their actual standard of living is substantially below that of their own country. Thus the rule is a snare and a delusion, a pretence which raises expectations without there being any real possibility of fulfilling them.”
[37]The Court, applying the principles in Kruse v Johnson [1898] 2 QB 91, struck down the Rule as extremely unreasonable both for that reason and because it was “partial and unequal” in its operation as between different classes (namely applicants living in poor countries and applicants living in affluent countries). The passage in Kruse relied upon by Simon Brown J was the following in the judgment of Lord Russell CJ at pages 99-100:
“I do not mean to say that there may not be cases in which it would be the duty of the Court to condemn by-laws, made under such authority as these were made, as invalid because unreasonable. But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, ‘Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires’.”
[38]Simon Brown J applied those principles in Kruse to the facts in Manshoora Begum in the following way (at p. 394):
“I see no possible basis in sense or justice for a requirement which will automatically disqualify from admission under the rule virtually all those from the poorer countries of the world, irrespective of whatever exceptional compassionate circumstances may surround their case, and yet allow most dependants from more affluent countries to be considered on general compassionate grounds. Whether, moreover, one is considering the application of the rule to dependants living in rich or poor countries, I regard it as manifestly unjust that – however extreme may be the compassionate circumstance of the case – a dependant is barred from admission under the rule unless only his or her sponsor (who, of course, equally seeks their admission) cannot afford to send abroad enough money to raise the dependant’s standard of living to above that where it still remains substantially below the general standard of living in that country, but yet has enough (presumably, only just enough) to maintain the dependant were he or she to be admitted for settlement here. All other dependants, namely those whose sponsors are able to afford to send them enough money that they may live above a substantially sub-standard level, are doomed to fail in their applications for leave. To them and their sponsors the rule is indeed but a mirage. In my judgment, it is unreasonable in the narrow sense indicated in Kruse v Johnson, and thus ultra vires the enabling statutory power.”
[39]The appellant contends that precisely the same considerations apply to the new ADR Rules. It says that a sponsor capable of maintaining, accommodating, supporting and caring for their ADR in the UK without recourse to public funds (as required under the new ADR Rules), and who has, in many cases, been providing the relative with support abroad, will find it next to impossible to assert that it is not possible for their relative to be looked after by a paid carer or carers abroad funded by the sponsor and other family members. It is said, therefore, that it is virtually impossible for anyone to meet the test.[40]The appellant says, further, that, if it is possible to satisfy the new ADR Rules at all, they would be satisfied much more readily by an applicant living in an affluent country, where the costs of providing care are much greater, than in poorer, third world countries, where paid provision is easily affordable for a sponsor sufficiently established in the UK. It is said, therefore, that the new ADR Rules have the same “partial and unequal” impact in their operation as did the Rule in issue in Manshoora Begum.[41]Finally, the appellant says that, even in those states where healthcare may be so poor that the new ADR Rules might be met, if the ADR needed hospital or residential care, rather than merely personal care, then they would be very unlikely to meet the requirement of being accommodated and maintained by the sponsor.

Article 8

[42]The appellant’s case on Article 8 went through a degree of refinement in the course of the hearing of the appeal.[43]The appellant’s starting point on this ground of the appeal is, as I have said, that in every paradigm case, as described by Ms Lieven, there is family life which engages the protection of Article 8. Ms Lieven referred, in this connection to Lord Bingham’s description of family life in Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, at [18].[44]The appellant then says that refusal of an application under the new ADR Rules in such a paradigm case is necessarily an interference with family life.[45]The appellant submits that such an interference is disproportionate and so in breach of Article 8 and unlawful under section 6 of the Human Rights Act 1998. Having regard to the fourfold test in Huang at [19], Ms Lieven acknowledged that the policy of saving the NHS money is an important objective, and that the new ADR Rules are rationally connected to meeting that objective, but she submitted that lesser means could be used to accomplish that objective, and that a fair balance has not been struck between the rights of those seeking to preserve family life in the paradigm situation, or indeed the larger group of dependants entitled to apply under the new ADR Rules, and the interests of the wider public. The appellant advances several propositions in support of that submission.[46]First, it is said that the new ADR Rules give no, or insufficient, consideration to the nature and extent of the family interests engaged. In particular, it is said that they give no weight to emotional ties since they proceed on the basis that care given by a paid provider is adequate care, no matter the extent to which family provided care would improve the ADR’s quality of life; no regard is paid to the benefit that the parties will draw from reunion and precious time before the ADR becomes so incapable as to need extensive personal care for basic tasks; no regard is paid to wider family interests, such as the relationship between grandparents and grandchildren and the value to the latter of the cultural heritage obtained from contact with their grandparents; there is no consideration of the cultural norm in many communities for looking after elderly relatives. Ms Lieven made the additional point, in this regard, that, when an application under the new ADR Rules is refused, there is in effect a permanent interference with family life.[47]Second, the appellant says that no regard appears to have been paid to the impact of the new ADR Rules in influencing potential sponsors in the UK to re-locate to other countries where it would be easier to bring a dependant and in influencing others who might otherwise wish to come to the UK not to do so, or to the wider economic impact on the UK of such decisions. I have already referred to the evidence about such matters. It is emphasised by the appellant that many of those people are persons the UK positively wishes to retain or attract as part of migration policy (under Tier 1 of the Points-based system) or because they have been admitted following satisfaction of the “resident labour market test” or because they are central to the operation of core services such as the NHS.[48]Third, the appellant says that it is relevant to proportionality that the admission of ADR parents – approximately 2,000 to 3,000 annually - is relatively small, even by reference to the total number of family dependant migrants.[49]Fourth, the amount of saving to the NHS anticipated in the Government’s Impact Assessment was only £23 million over 10 years, which the appellant says is a relatively small amount in the scale of things. The appellant says that even that figure is unreliable. In fact, the latest material in the form of a document produced on behalf of the SoS, which the parties have called “the Note”, indicates a saving of £249 million over 10 years. The appellant says that indicates that the number of ADRs which the Government had anticipated would be given permission to enter and remain under the new ADR Rules was much greater than has in fact occurred.[50]Fifth, the appellant says that those estimated costs savings include social care costs, but, not only has there been no break-down of those social care costs, those are costs which are unlikely to arise because sponsors necessarily wish and intend to care for their own ADRs.[51]Sixth, the appellant says in its skeleton argument that the new ADR Rules are counter-productive since the evidence shows, as mentioned earlier, that a number of sponsors opt to move for a period to another EU state to which they can bring their parents, and then return to the UK with parents in respect of whom the SoS has no formal undertaking from the sponsor to maintain, accommodate and provide care. Ms Lieven did not press this point in oral submissions in view of the future withdrawal of the UK from the EU.[52]Seventh, the appellant says that the SoS could have taken measures which would have achieved the same objective as the new ADR Rules and been less intrusive of the right to family life. Those alternatives are said to include the following: requiring ADRs to take out private health insurance; imposing an income threshold upon the sponsor to ensure that they have sufficient funds to provide for their ADRs; requiring ADRs to pay for any treatment received; imposing immigration health surcharges upon ADRs; requiring a bond from ADRs which may be drawn upon if the NHS or other public services are used; adopting a system of granting limited leave to ADRs, or a ‘probationary period’, and then assessing their position and cost (if any) to the tax-payer on a rolling basis; imposing a quota on the number of ADRs admissible each year.[53]The appellant submits that it is significant that the evidence shows that sponsors have expressed themselves as willing to co-operate with various of those suggested alternatives.[54]Eighth, the appellant says that the theoretical right of ADRs to come as “visitors” to the UK is no answer to its proportionality challenge. It relies on the evidence, mentioned above, that, firstly, ADRs are often refused visits to the UK on the basis either of their intentions or that their pattern of travel to the UK indicates that they wish and intend effectively to reside in the UK, and, secondly, that the risk of future refusals under the visit rules has had a “chilling” effect on applications under the new ADR Rules.[55]The appellant says that, in view of all those matters, the new ADR Rules will be disproportionate and so unlawful in all or nearly all cases. That is the test approved by the Supreme Court in R (MM (Lebanon)) v Secretary of State for the Home Department [2017] UKSC 10, [2017] 1 WLR 771 for striking down immigration rules, and so the new ADR Rules must be struck down in the present case. Ms Lieven submitted that the fact that the SoS has a discretion, which has been exercised in some cases, to grant permission to enter and remain outside the new ADR Rules is irrelevant to the validity of the new ADR Rules themselves since, unlike the position in R (Bibi) v Secretary of State for the Home Department [2015] UKSC 68, [2015] 1 WLR 5055, and MM (Lebanon), neither the new ADR Rules nor the Guidance contain an express provision for the grant of permission in exceptional circumstances, whether for compliance with Article 8 or otherwise. Ms Lieven submitted that, on any footing, the Guidance is also defective because it makes no provision for the significance of emotional ties and dependency between parent and child.

Discussion

[56]Despite those comprehensive arguments, skilfully advanced by Ms Lieven, I would dismiss this appeal for reasons which can be stated relatively briefly.[57]I start with the following general observations.[58]First, the policy intended to be implemented by the new ADR Rules, as appears from the evidence, the new ADR Rules themselves and the Guidance, and confirmed in the oral submissions of Mr Neil Sheldon, counsel for the SoS, is clear enough. It is twofold: firstly, to reduce the burden on the taxpayer for the provision of health and social care services to those ADRs whose needs can reasonably and adequately be met in their home country; and, secondly, to ensure that those ADRs whose needs can only be reasonably and adequately met in the UK are granted fully settled status and full access to the NHS and social care provided by local authorities. The latter is intended to avoid disparity between ADRs depending on their wealth and to avoid precariousness of status occasioned by changes in the financial circumstances of ADRs once settled here.[59]Second, as is apparent from the Rules and the Guidance, the focus is on whether the care required by the ADR applicant can be “reasonably” provided and to “the required level” in their home country. As Mr Sheldon confirmed in his oral submissions, the provision of care in the home country must be reasonable both from the perspective of the provider and the perspective of the applicant, and the standard of such care must be what is required for that particular applicant. It is possible that insufficient attention has been paid in the past to these considerations, which focus on what care is both necessary and reasonable for the applicant to receive in their home country. Those considerations include issues as to the accessibility and geographical location of the provision of care and the standard of care. They are capable of embracing emotional and psychological requirements verified by expert medical evidence. What is reasonable is, of course, to be objectively assessed.[60]I do not accept that, in considering the legality of the new ADR Rules, it is right to concentrate only on what Ms Lieven described as the paradigm case, namely a dependency as between ADR parent and UK sponsor child. The new ADR Rules also extend to grandparents, brothers and sisters of 18 years or over and sons and daughters of 18 years or over.[61]Nor do I accept the submission that there is always family life which engages Article 8 of the Convention whenever a UK citizen with an elderly parent resident outside the UK wishes to bring the parent to the UK to look after the parent. Whether or not there is family life at the moment of the application will depend on all the facts as to the relationship between parent and adult child and its history: Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 170, [2003] INLR170, at [19], [25]; Huang at [18]; Jitendra Rai v Entry Clearance Officer, New Delhi [2017] EWCA Civ 320.[62]Notwithstanding the evidence on which the appellant relies, it seems to me clear from the above that it is incorrect to say that inevitably it is nearly always impossible for an applicant to satisfy the new ADR Rules. Some time was spent on the hearing of the appeal examining figures produced by the SoS in the Note showing that from July 2012 to the end of 2015 234 applications by ADRs under the new ADR Rules succeeded before ECOs or on review by the Entry Clearance Manager and that, in the case of 307 successful appeals, “the appeal was generally allowed because … the Tribunal was satisfied that the new ADR Rules were met”. Those figures were not verified by a witness statement, and they were attacked by Ms Lieven as unreliable. They contrasted markedly with the total of only 2 applications which the appellant has been able to establish have succeeded under the new ADR Rules. It is not necessary, however, to place reliance on those figures to see that there is no inevitability about the failure of most applications under the new ADR Rules, whether such applications are by parents or, more relevantly, the wider category of relatives authorised to apply under the new ADR Rules, once it is appreciated that an application will only be rejected on the ground of the adequacy of care available in the applicant’s home country if the care that is available is both reasonable for the applicant to receive and of the level required for that applicant. Furthermore, the Guidance gives a number of example scenarios in which the SoS accepts that a dependant applicant can meet the criteria in the new ADR Rules. Ultra Vires[63]The challenge on the basis of the Padfield principle plainly fails. The principle is that a discretion conferred by statute on a minister must be exercised so as to promote and not to defeat the object of the legislation in question. It is for the Court to interpret the legislation in order to identify the policy and objects of the legislation in question.[64]The new ADR Rules do precisely what section 1(4) requires, namely making provision “in such cases and subject to such restrictions as may be provided in the rules” for persons coming as dependants of persons lawfully in or entering the UK. The statute does not require that all dependants or any particular category of dependants be permitted to enter and stay. None of the material in existence before or at the time of the enactment of the 1971 Act is capable of qualifying the clear language of section 1(4) in that respect. As Mr Sheldon put it, there is nothing in section 1(4) to indicate an intention of Parliament to fetter the SoS’s discretion to make rules concerning ADRs by imposing a minimum threshold of stringency or a minimum width of gateway, let alone indicating what any such minimum might be. The obligation to make rules described by Lord Dyson is Munir at [28] has been satisfied. As Mitting J observed, it would have been perfectly within section 1(4) (subject to Article 8) for the SoS to exclude adult dependants altogether from persons who must be admitted.[65]Furthermore, it was an essential limb of the appellant’s argument on ultra vires that the conditions imposed by the new ADR Rules effectively preclude an application by a dependant parent. For the reasons I have given, I do not accept that that is the effect of the new ADR Rules even in relation to that specific sub-category of dependants.[66]The appellant’s argument based on section 1(1) of the 1971 Act must be rejected. As Aikens LJ said in the Court of Appeal in MM (Lebanon) (in a judgment with which the other members of the court agreed) at [2014] EWCA Civ 985, [2015] 1 WLR 1073 at [138], while a British citizen has a personal right to live in the UK “without let or hindrance”, there is nothing in the 1971 Act or the common law that grants a constitutional right of British citizens to live in the UK with non-EEA persons who do not have the right of abode in the UK. Manshoora Begum unreasonableness.[67]The relevant rule was struck down in Manshoora Begum on the grounds that it was “a delusion [and] a pretence which raise[d] expectations without there being any real possibility of fulfilling them” and because it was “partial and unequal” in its operation as between different classes of potential applicant.[68]Neither of those deficiencies applies in the present case. For the reasons I have given, the appellant is not correct in its contention that it is practically impossible to meet the conditions of the new ADR Rules in virtually all cases, even in relation to elderly parents. True it is that significantly fewer dependants, including parents, will be able to satisfy the new conditions but that was always the intention.[69]I have set out the policy and objectives of the new ADR Rules. The new ADR Rules give effect to the policy and achieve the objectives intended. Bearing in mind the material before us which shows that, in terms of the NHS alone, the costs of caring for an individual between the ages of 65-85 is approximately £75,000, there is nothing irrational about that policy and those objectives.[70]Nor do the new ADR Rules operate in an arbitrary or capricious way as between different categories of ADR. Each case will turn on its own particular facts. There may be some countries where there is provision of a high standard of care and it will be difficult to satisfy the conditions in the new ADR Rules because the cost of acquiring such care is not exceptionally high; and there will be other countries where the cost may be very high and unaffordable by the ADR, even with financial support from the UK sponsor.[71]Moreover, it is of relevance that the proposed policy and objectives of the new ADR Rules were the subject of prior consultation, debate within Parliament and Parliamentary approval following that debate. While such matters are not necessarily conclusive, they are plainly highly relevant to a challenge on a common law Kruse v Johnson challenge of unreasonableness. Article 8[72]In the usual case, a claim that an immigration Rule has been applied in a way that is unlawful as infringing Article 8 of the Convention, and hence in breach of section 6 of the HRA, will turn on the facts of a particular case. Immigration Rules are not of themselves required to guarantee compliance with Article 8: AM (Ethiopia) v Entry Clearance Officer [2008] EWCA Civ 1087, [2009] Imm AR 254 at [39] and [119]. It is common ground that in MM (Lebanon) the Supreme Court, following observations in Bibi, has held that the test for striking down the Rule itself is whether it is incapable of being operated in a proportionate way and so is inherently unjustified in all or nearly all cases, that is to say it is couched in a form which makes non-compliance in individual cases practically inevitable: paras [56] and [58].[73]I consider it is clear that that test is not satisfied in the case of the new ADR Rules for the following reasons.[74]Firstly, as I have said, I reject the appellant’s submission that there is family life which engages Article 8 in every case where a UK sponsor wishes to bring their elderly parent to the UK to look after them. As Sedley LJ said in Kugathas at [18], [24] and [25] with regard to an adult, neither blood ties nor the concern and affection that ordinarily go with them are, by themselves or together, enough to constitute family life; there is no presumption that a person has a family life, even with the members of a person’s immediate family. The court has to scrutinise all the relevant factors. There must be something more than normal emotional ties. As Lord Bingham said in Huang at [18]:
“Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant’s dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant.”
Ms Lieven also referred to a number of other cases, including Singh and Singh v Secretary of State for the Home Department [2015] EWCA Civ 630, [2016] Imm AR 1, and PT (Sri Lanka) v Entry Clearance Officer Chennai [2016] EWCA Civ 612, but they do not take the legal principles any further.[75]Secondly, in order to strike down the new ADR Rules, regard must be had to their proportionality in relation to all the dependants that can apply pursuant to them and whose family life engages Article 8, and not just to the category of parent and adult child.[76]Thirdly, for the reasons I have given the appellant has not established that the conditions for entry and right to remain for ADRs under the new ADR Rules are incapable of practical fulfilment in virtually all cases for parents, let alone for all the categories of ADRs entitled to apply, whose family life engages Article 8. In particular, rejection on the basis of the availability of adequate care in the ADR’s home country turns upon whether the care which is available is reasonable for the ADR to receive and of the level required for that applicant. Contrary to the submission of the appellant, those considerations are capable, with appropriate evidence, of embracing the psychological and emotional needs of elderly parents.[77]Fourthly, in carrying out the exercise of balancing the interests of ADRs and sponsors, on the one hand, and the public interest on the other hand, significant weight must be given to the fact that the proposed policy and objectives of the new ADR Rules were the subject of prior consultation, debate within Parliament and Parliamentary approval following that debate. The weight to be attributed to the achievement of that policy and those objectives rather than the retention of sponsors who might prefer to re-locate to countries which have a less rigorous policy for permitting dependants to enter and remain, and rather than avoiding the risk of deterring potentially desirable immigrants, is essentially a matter for the government and Parliament to decide.[78]Furthermore, the balance depends on the facts of any particular case – the particular strength of the family bond and all other matters in favour of the particular applicant, on the one hand, and the public interest in achieving the policy and objectives of the new ADR Rules, on the other hand: see the observation of Baroness Hale and Lord Carnwath in MM (Lebanon) at [57].[79]The evidence shows that, prior to the introduction of the new ADR Rules, consideration was given by the Home Office to various alternative means by which the policy objectives of the SoS might effectively be achieved, and a number of those alternatives were the subject of consultation. In the material before the Court an explanation has been given on behalf of the SoS why each of the alternative options suggested by the appellant as less intrusive of family life is not desirable as a matter of policy. It is not necessary to set out the detailed explanation. It is sufficient to say that the reasons given by the SoS for their unsuitability, in the context of achieving the policy of the new ADR Rules, approved by Parliament, are not obviously flawed and are, again, essentially matters of policy for the government and Parliament rather than the court.[80]Although there were moments in her oral submissions when it appeared that Ms Lieven was critical of the Guidance for its lack of clarity and assistance to applicants as to the circumstances in which it would and it would not be possible to make a successful application under the new ADR Rules, the formal claim is that the new ADR Rules are defective and should be quashed. No relief is sought in respect of the Guidance. Conclusion[81]For all those reasons I would dismiss this appeal.

Lord Justice Davis:

[82]I agree with both judgments.

Lord Justice Sales:

[83]I agree that this appeal should be dismissed for the reasons given by the Master of the Rolls. I add a short judgment of my own on the Article 8 ground of appeal because of the new way in which Miss Lieven QC presented her submissions in relation to that ground in her reply.[84]Where a challenge based on Article 8 is brought in relation to an immigration rule seeking to quash the rule itself, as in this case, it is common ground that the legal test is that set out by Lord Hodge JSC in the Supreme Court in R (Bibi) v Secretary of State for the Home Department [2015] UKSC 68; [2015] 1 WLR 5055 at [69] (approving the approach of Aikens LJ in the Court of Appeal in R (MM (Lebanon) v Secretary of State for the Home Department [2014] EWCA Civ 985; [2015] 1 WLR 1073 at [133]-[134]) and applied by the Supreme Court in R (MM (Lebanon)) v Secretary of State for the Home Department [2017] UKSC 10; [2017] 1 WLR 771 at [56]-[58] in the judgment of Baroness Hale of Richmond JSC and Lord Carnwath JSC. As Lord Hodge said, “The court would not be entitled to strike down the rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases.” Baroness Hale and Lord Carnwath explain that this reflects the fact that, as a general rule, it is the decision in an individual case which may be incompatible with the Convention rights, rather than the relevant immigration rule itself: [57].[85]Counsel in the present case agreed that the immigration rules under challenge in both the Bibi and the MM (Lebanon) cases were rules which applied in situations in which Article 8 rights were invariably engaged and the operation of the rule would inevitably involve interference with those rights. In those cases, therefore, the only relevant question arising for the purposes of analysis under Article 8 was whether the rule in each case could be justified under Article 8(2) (or by analogy with it where a positive obligation under Article 8 is in issue) as a proportionate interference with those rights. This explains why Aikens LJ in MM (Lebanon) in the Court of Appeal at paras. [133]-[134] proceeded by “assuming the relevant immigration rule constitutes an interference with a Convention right” (para. [134]) and formulated the test as being whether “the immigration rule and its application to particular cases would be inherently disproportionate or unfair” or whether it could be said that “the immigration rule is incapable of being proportionate and so is inherently unjustified” (para. [133]), and asked whether “the particular immigration rule is one which, being an interference with the relevant Convention right, is also incapable of being applied in a manner which is proportionate or justifiable or is disproportionate in all (or nearly all) cases” (para. [134]). This also explains why Lord Hodge in Bibi adopted the same formulation of the relevant test and why the Supreme Court endorsed and applied it in MM (Lebanon).[86]In the present case, by contrast, there is a live issue whether the ADR immigration rules under challenge only apply where Article 8 rights of the adult dependant relative or the sponsor in the UK are engaged and where the application of the rules would invariably involve an interference with such rights. For the reasons given by the Master of the Rolls by reference to the Kugathas case, I cannot accept Miss Lieven’s submission that Article 8 rights are always engaged in the cases covered by the ADR rules and hence cannot accept her submission that application of the rules will invariably involve an interference with Article 8 rights. In my view there is likely to be a significant number of cases even within the paradigm type of situation involving elderly parents abroad (on which Miss Lieven focused her submissions) in which Article 8 rights will not be engaged and where for that reason the application of the ADR immigration rules would not contravene Article 8. The position becomes clearer still when the wider categories of adult dependant relatives to which the rules apply outside that paradigm situation are taken into account, in relation to which it will often not be possible to show that there is any recognised family life for the purposes of Article 8.[87]The challenge in these proceedings is to the ADR immigration rules themselves, with a view to quashing them as unlawful. In my judgment, adjusting the test as stated by Aikens LJ and Lord Hodge to take account of a context in which there is a live issue whether Article 8 is engaged at all in some cases covered by the immigration rule under challenge, the relevant question becomes whether the rule is incapable of being applied in a manner which does not involve a violation of Article 8. In other words, if there are cases in which the immigration rule can be applied without violation of Article 8 either because Article 8 is not engaged in the first place (so there is in those cases no interference with Article 8 rights which requires justification) or because, even if Article 8 is engaged, the interference will be justified and proportionate, the court would not be entitled to strike the rule down. It would not be right for the court to strike down an immigration rule which could be applied perfectly lawfully and compatibly with Article 8 in a range of cases, whether the reason for that was non-engagement of Article 8 in the first place or justified interference with Article 8 rights if it was engaged. In both cases, there would be perfectly legitimate scope for the rule to be applied according to its terms in at least some cases and hence no proper basis for treating the rule itself as unlawful.[88]Applying that formulation of the test, it is clear that the appellant cannot satisfy it in this case. There is ample scope for the ADR rules to be operated lawfully and without violation of Article 8 rights both because (a), as explained above, in some cases where the rules are applied Article 8 will not be engaged and application of the rules will not involve any interference with Article 8 rights and (b) even in cases where Article 8 is engaged, the interference with Article 8 rights arising from application of the rules will often be justified by reference to the public interest objectives identified by the Secretary of State and will often be proportionate. Point (b) is reinforced by the proper interpretation of the relevant rules as explained by the Master of the Rolls. If the care required by an elderly relative cannot reasonably be provided overseas the relative may well be able to succeed in gaining leave to enter under the ADR rules; conversely, if the required care can reasonably be provided overseas, it is likely that it will not be disproportionate to apply the ADR rules with full force and effect in such a case. (There might be some scope in the specific circumstances of a particular case for seeking leave to enter or leave to remain outside the rules in reliance on Article 8 rights, as explained by Laws LJ in AM (Ethiopia) v Entry Clearance Officer [2008] EWCA Civ 1082; [2009] Imm AR 254, at [39], and by Baroness Hale and Lord Carnwath in MM (Lebanon) at paras. [57] and [58]; but it is unnecessary to say more about this in the context of the challenge to the ADR rules themselves in this case).[89]In her submissions in reply, Miss Lieven advanced a new, alternative submission. She contended that in order to apply the test as stated in Bibi and MM (Lebanon) correctly, it has to be assumed in favour of the relevant adult dependant relative and sponsor in relation to whom the ADR rules are applied that they do have “family life” for the purposes of Article 8, so that the sole question becomes whether – making that assumption – the application of the rules would be unjustified and disproportionate.[90]I should say that even if that were the correct approach, I would still have dismissed the appeal because it is clear that in a significant number of cases where the ADR rules are applied the interference with Article 8 rights would be justified and proportionate. However, my primary reason for dismissing this new case presented by Miss Lieven is that I reject her submission. I can see no warrant for assuming in favour of a person who seeks to challenge an immigration rule on the basis of Article 8 that their or their relative’s Article 8 rights are engaged, when proper legal analysis may show clearly that that is not the case. It would be most strange to make such an assumption, with the result that the court might then have to proceed to strike down the rule in question for its supposed incompatibility with Article 8, when the rule could in reality be applied in many cases without any such incompatibility by virtue of the fact that Article 8 did not apply in those cases at all. That would give the principle of challenge to immigration rules as established in MM (Lebanon) and Bibi disproportionate effect. An immigration rule which is apparently properly promulgated by the Secretary of State and presented to Parliament in the proper way is not to be struck down if it can apply without violation of Article 8 in some cases.[91]I have already explained that the particular way in which the test was stated in MM (Lebanon) and Bibi is to be explained by the particular context and the particular immigration rules which had to be considered in those decisions. In my view, neither Aikens LJ nor the Supreme Court intended to say that the assumption of engagement of Article 8 for which Miss Lieven contends should be made in all cases. They gave no reasons why it should. Instead, they stated the principle in the way which was appropriate for examination of the respective immigration rules which were in issue in those decisions. In my view, contrary to Miss Lieven’s new submission, the thrust of the reasoning in those cases is to the effect that an immigration rule should not be struck down as unlawful by reference to Article 8 unless application of the rule is practically guaranteed to be incompatible with Article 8 in all (or nearly all) cases.

Cited in 7 later judgments