“This is an error of law hearing at which oral evidence will not be required, whether from Miss K directly, or as you now indicate, Miss K’s father. Please be aware that in any case Miss K’s father is not noted on the Tribunal database as acting as a recognised sponsor in this appeal. If an interpreter is required simply so that the parties may follow the proceedings, they or your offices are welcome to engage one, but this would not be a matter for the Tribunal.”
“3.2.7d Exceptional circumstances Where the applicant does not meet the requirements of the rules refusal of the application will normally be appropriate. However, leave can be granted outside the rules where exceptional circumstances apply. Consideration of exceptional circumstances applies to applications for leave to remain and leave to enter. “Exceptional” does not mean “unusual” or “unique”
“14. The definition of “exceptional circumstances” which is given in this guidance equates such circumstances with there being unjustifiable hardship involved in removal such that it would be disproportionate – i.e. would involve a breach of Article 8. The practical guidance and illustrations given in the passage quoted above support that interpretation. No challenge is brought to the lawfulness of this guidance. In my view, it gives clear and appropriate guidance to relevant officials that if they come across a case falling outside the new rules, they nonetheless have to consider whether it is a case where, on the particular facts, there would be a breach of Article 8 rights if the application for leave to remain were refused.”
“40. … [J]udges called on to make decisions about the application of Article 8 in cases to which the new rules apply, should proceed by first considering whether a claimant is able to benefit under the applicable provisions of the Immigration Rules designed to address Article 8 claims. If he or she does, there will be no need to go on to consider Article 8 generally. The appeal can be allowed because the decision is not in accordance with the rules. 41. Where the claimant does not meet the requirements of the rules it will be necessary for the judge to go on to make an assessment of Article 8 applying the criteria established by law. 42. When considering whether the immigration decision is a justified interference with the right to family and/or private life, the provisions of the rules or other relevant statement of policy may again re-enter the debate but this time as part of the proportionality evaluation. Here the judge will be asking whether the interference was a proportionate means of achieving the legitimate aim in question and a fair balance as to the competing interests. 43. The weight to be attached to any reason for rejection of the human rights claim indicated by particular provisions of the rules will depend both on the particular facts found by the judge in the case in hand and the extent that the rules themselves reflect criteria approved in the previous case law of the Human Rights Court at Strasbourg and the higher courts in the United Kingdom.”
“… [I]f, after the process of applying the new rules and finding that the claim for leave to remain under them fails, the relevant official or tribunal judge considers it is clear that the consideration under the Rules has fully addressed any family life or private life issues arising under Article 8, it would besufficient simply to say that; they would not have to go on, inaddition, to consider the case separately from the Rules. If there is no arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8, therewould be no point in introducing full separate consideration ofArticle 8 again after having reached a decision on applicationof the Rules.”
“66(1). Sales J's point is that the second stage can, in an appropriate case, be satisfied by the decision-maker concluding that any family life or private life issues raised by the claim have already been addressed at the first stage – in which caseobviously there is no need to go through it all again.”
“[20]. … [Section 65 of the Immigration and Asylum Act 1999 ] allows, indeed requires, the appellate authorities, in determining whether the appellant's article 8 rights have been breached, to take into account the effect of his proposed removal upon all the members of his family unit. Together these members enjoy a single family life and whether or not the removal would interfere disproportionately with it has to be looked at by reference to the family unit as a whole and the impact of removal upon each member. If overall the removal would be disproportionate, all affected family members are to be regarded as victims.”
“2. This argument supporting this ground runs as follows:- (i) The article 8 assessment remains a two-stage test (first applying the Rules, followed by an assessment outside of the Rules if warranted); (ii) If the claim before the SSHD discloses no arguable grounds for looking beyond the Rules, then it may be sufficient (after clearly setting out the facts and explaining why) to simply state so in the decision letter; (iii) The SSHD decided in this case that there were no arguable grounds for consideration of article 8 outside of the Rules, and said so in the decision letter. (iv) The FTTJ found as a matter of fact and law that, although the Appellant clearly and admittedly did not meet the Rules, there existed article 8 family life between the Appellant and her parents and brother (who all had leave, and would be eligible to apply for ILR at the end of that leave). (v) It follows that there was contrary to the SSHD’s decision letter an arguable case outside of the Rules. To the extent that the decision letter held otherwise, it disclosed an error of law (i.e. the article 8 assessment was on its face wrong). (vi) The above was sufficient to engage the FTTJ’s power to remit the matter to the SSHD. It was alternatively open to her to decide the article 8 and, if appropriate, determine that removal would be unlawful. In the premises however it was perfectly open to the FTTJ to decide that the most appropriate order (given the fact that applications for ILR from the other family members would soon be considered by the SSHD) to remit the matter to be considered in the round.”
“It has also been considered whether the particular circumstances set out in your application constitute exceptional circumstances which, consistent with the right to respect for private and family life contained inArticle 8 of the European Convention on Human Rights , might warrant consideration by the Secretary of State of a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules. In support of your claim you state that your family are in the UK and you are financially dependent on your father and that you have made many friends in the UK. This has been carefully considered. However, the family life that you claim to have with your relatives does not constitute family life as set out in Appendix FM of the Immigration Rules. It is considered the relationship with your family can continue from overseas via other methods of communication. It is also accepted that you could apply for appropriate entry clearance should you wish to return to the UK to visit your family and friends. It would be open to your father to financially support you from the UK if he wishes, it would also be open to you on your return to India to seek employment which is something that you are currently unable to do in the UK lawfully. It has therefore been decided that there are no exceptional circumstances in your case and a refusal to grant leave outside the rules would not result in unjustifiably harsh consequences for you. Consequently your application does not fall for a grant of leave outside the rules.”
“18. The refusal letter states that the Respondent has considered whether the particular circumstances of the Appellant constitutes exceptional circumstances outside the Rules. Whilst the refusal letter is concise, that of itself does not make it unlawful. The question is whether the Respondent is aware of the salient features of the case and has directed her mind to them …. Those were not exceptional circumstances in the Respondent’s view which meant that the Appellant’s application should be granted outside the Rules. When the Respondent stated that the family life the Appellant claimed did not constitute family life “as set out in Appendix FM” the Respondent was stating that the Appellant’s claim to a family life did not fall within the Immigration Rules. 19. I see nothing muddled in that approach. The Respondent was obliged to consider first whether the Appellant’s claim could succeed under the Immigration Rules and she decided for the reasons that she gave that it did not. What the Respondent did acknowledge in the refusal letter was what was referred to as “the relationship with your family”