Ahmed v Secretary of State for the Home Department [2014] EWHC 300 (Admin)

Case No CO/1765/2013[2014] EWHC 300 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Birmingham Civil Justice Centre, 33 Bull Street, Birmingham, B4 6DSDate 14/02/2014
Before
MR JUSTICE GREEN
Between
IFTIKHAR AHMEDClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Emma Rutherford (instructed by Hasan Solicitors) for ClaimantClaire Van Overdijk (instructed by Treasury Solicitor) for DefendantHearing Hearing dates: 4 th February 2014
JudgmentMr Justice Green :
[1]This is an application for judicial review of decisions of the Secretary of State for the Home Department (“SSHD” or the “Defendant”) refusing the Claimant’s application for leave to remain in the United Kingdom. It concerns spousal rights and the circumstances when an applicant who fails to adhere to the basic requirements in the Immigration Rules should nonetheless be entitled to rely on Article 8 to found a basis to remain. It focuses upon the nature and operation of the so-called two part test for the evaluation of Article 8 type considerations within the context of immigration law. In addition it examines the scope of the concepts of “precarious” rights and “insurmountable obstacles”. In addition it addresses the relevance of “inadvertent errors” on the part of applicants as an Article 8 consideration. (2).

(i) The Claimant

[2]The Claimant is a citizen of Pakistan. He arrived in the United Kingdom on 5th November 2005 as a spouse of a person settled and present in the United Kingdom and was given leave to remain until 24th October 2007. On 9th October 2007, prior to expiration of his permitted period, he applied for leave to remain upon the same basis, namely that he was a spouse of a person with a settled right to remain. That application was granted until 19th October 2009. At that point in time the Claimant should either have left the United Kingdom or applied to extend his stay lawfully.[3]No new application was made until 13th June 2012. The explanation given is that the Claimant had overlooked the fact that his leave granted in 2007 was only temporary (until 2009) and not permanent. It is explained that he discovered his mistake in January 2012 and in order to increase his prospects of obtaining leave to remain he embarked upon a Entry Level Certificate in ESOL Skills for Life Course. He obtained that certificate on 24th April 2012 but the award was, however, not an award from an establishment recognised by the UK Border Agency (“UKBA”). (ii) The first decision: 13th November 2012[4]On 13th June 2012 the Claimant, as already observed, submitted a new application for leave to remain in the United Kingdom as a spouse of a person present and settled in the United Kingdom. That application was refused on 13th November 2012. The basis of the refusal decision was, in summary, that under the rules, a right to remain would be considered only in favour of a person who:(i) had a limited leave to enter or remain at the time of the application;(ii) had not remained in the UK in breach of the Immigration Rules; and(iii) had provided an original English language test certificate in speaking and listening from an English language test provider approved by the Secretary of State (unless certain circumstances apply which do not arise on the facts of the present case).[5]In addition the Defendant explained that she had considered the matter under Article 8 ECHR in relation to the claim for family life. The Defendant found that there were no family life grounds which were relevant to the Claimant as that policy was applied under Appendix FM Ex.1 of the Immigration Rules. In particular the Defendant stated that the Claimant did not have any British children and there were no insurmountable obstacles as to why the Claimant and/or his partner could not pursue a family life in the Claimant’s home country, namely Pakistan. Further, there were no private life grounds under Article 8 which were relevant in the Claimant’s favour as that policy was applied under paragraph 276 ADE of the Immigration Rules. In particular the Defendant recorded that the Claimant had entered the United Kingdom in 2005 and could not show that he did not have any social or cultural ties in his home country, i.e. Pakistan. (iii) The application for permission to apply for judicial review[6]In view of this refusal the Claimant applied for permission to apply for judicial review of the Defendant’s decision. There were six principal bases upon which the application was founded which I summarise as follows. First, the Defendant was bound to consider Article 8 outside of the Rules in the light of MF Nigeria [2012] UKUT 0093, and Izuazu [2013] UKUT 00045. Secondly, this was very important in cases where there was no right of appeal against the Defendant’s decision. Thirdly, in the circumstances the Defendant had acted unlawfully by failing to consider either the Claimant’s rights or those of his wife. Fourthly, the Defendant had erred in applying the insurmountable obstacles or exceptionable circumstances test as opposed to a proportionality test. Fifthly, the test was whether it was reasonable in all the circumstances to allow the Claimant to remain and this had not been applied. Sixthly, as to reasonableness the fact that the relationship of the husband and wife was a genuine and subsisting one was of great importance and had been accorded insufficient weight and the fact that the Claimant had made genuine errors in overstaying his permission and in failing to obtain an English language certificate from an approved body was unfortunate but these were errors which should not count against him.[7]The Defendant served Summary Grounds of Defence on 3rd April 2013. Permission, however, was granted to apply for judicial review on 20th June 2013. (iv) The second Decision letter: “The August 2013 Decision”.[8]On 2nd August 2013 the Defendant issued a second Decision. For the purposes of this application it is this Decision that now contains the full reasoning of the Defendant. In this the Defendant explained that the Claimant’s case had been reviewed by reference to the Claimant’s particular facts but that the decision to refuse leave to remain had been maintained. The reasons given may be summarised as follows.[9]First, the Claimant’s application was made as a person without a lawful right to reside since he had overstayed his earlier grant which had expired on 19th October 2009.[10]Secondly, the English language test certificate supplied by the Claimant was not sufficient in that it did not emanate from an approved source.[11]Thirdly, the Claimant’s case had now been considered under a proportionality test as laid down in Appendix FM of the Immigration Rules. In this regard the following facts and matters had been taken into consideration: i) The fact that the Claimant and his wife did not have children. ii) The fact that there were no insurmountable obstacles to the Claimant and his wife continuing a family life in Pakistan bearing in mind that the Claimant’s wife had lived most of her life outside of the United Kingdom and the fact that the Claimant had likewise lived most of his life in Pakistan. iii) The fact that neither the Claimant nor his wife had employment nor owned property in the United Kingdom. iv) The fact that the Claimant, having overstayed his permit, “should have been aware” that he had no legal right to remain and could be asked to leave at any point in time and that this would impact upon his family life in the United Kingdom. v) The conclusion that for the Claimant and his wife living in the United Kingdom was merely a preference to living in Pakistan but that no evidence had been advanced to establish that there were any problems in relation to relocating back to Pakistan. vi) The fact that the Claimant had produced no evidence that he had no ties, including cultural or family ties back in Pakistan.[12]Fourthly, having considered all of these facts and matters under the proportionality heading the Secretary of State then proceeded to consider, in paragraphs 21 and 22 of the August 2013 Decision, whether there were any exceptional circumstances and she considered that there were none. Paragraph 21 has been subjected to particular criticism by the Claimant. It is in the following terms: “21. I have considered whether the particular circumstances set out in your client’s application constitute exceptional circumstances which, consistent with the right to respect a private and family life contained in Article 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. It has been decided that they do not, because it took your client over two years to attempt to regularise his stay in the United Kingdom after his previous leave to remain expired. Your client claims this was an oversight on his part as he thought he had indefinite leave to remain. However, it was your client’s responsibility to ensure that he was aware of the conditions of his stay in the United Kingdom, and to make sure that he remained here lawfully at all times”.[13]In paragraph 23 of the Decision the Secretary of State stated that she did not consider that the Claimant’s obligation to return to Pakistan was disproportionate “…to the permissible aim of maintaining an effective immigration control”.

(v) The reformulation of the Claimant’s Grounds

[14]In the light of this the Claimant has refined his arguments. This was necessary since the August 2013 Decision addressed some of the complaints made in the original Grounds. In two addendum documents the Claimant has reformulated his case which may now be summarised as follows.[15]First, the Defendant has erred in failing at all or adequately to address Article 8 “outside of the Immigration Rules”. It is contended that since the Grounds were drafted the obligation upon the Defendant to consider Article 8 outside of the scope of the Immigration Rules had been confirmed by Sales J in R (on the application of Onkar Singh Nagre) v SSHD [2013] EWHC 720 (Admin) but that this has not occurred in this case. Paragraph 21 is said to be “wholly inadequate”: “It is contended that to simply state that the Claimant has waited two years to regularise his status, in circumstances when it is not challenged that his marriage is subsisting, is insufficient reason for stating that the case cannot succeed outside of the Immigration Rules”.[16]Secondly, it is said that in her assessment of whether there were insurmountable obstacles to the Claimant’s wife in particular relocating to Pakistan the Defendant, yet again, erred in failing properly or at all to consider Article 8 considerations. (3). The statutory framework[17]The relevant statutory framework was referred to in the relevant Decision Letters. It has, as I explain below, been made the subject of analysis in recent judgments of the High Court and the Court of Appeal. The starting point is Rule 284 of the Immigration Rules which concerns the requirements for an extension of stay as the spouse or civil partner of a person present and settled in the United Kingdom.[18]Rule 284(i)(iv) and (ix)(a) are relevant in this case. Rule 284(i) stipulates as one requirement that at the point in time at which an application is made the applicant must have limited leave to enter or remain in the United Kingdom given in accordance with the relevant Rules. Rule 284(iv) stipulates further that “…the applicant has not remained in breach of the immigration laws”. In the present case it is not in dispute that the Claimant does not meet either of these two requirements. Further, Rule 284(ix)(a) stipulates that the applicant must provide an original English language test certificate in speaking and listening from an English language test provider approved by the Secretary of State for these purposes. Once again it is not in dispute that this requirement was also not met. It follows that, prima facie, the Claimant did not have leave to remain in the United Kingdom when the Defendant took the decisions in issue. Accordingly, the Claimant’s rights rest upon the application of Article 8 ECHR to his particular circumstances.[19]Rule 276 ADE of the Immigration Rules addresses requirements to be met by an applicant for leave to remain on the grounds of private life and family life (under Article 8). Of relevance to the present case is that under Rule 276 ADE (vi), one of the requirements to be met by an applicant for leave to remain on the grounds of private life in the UK is that at the date of application the applicant:
“…is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK”
. It is common ground that this particular condition was also not met. The conclusion of the Defendant that the Claimant does have ties including of a social, cultural or family nature with Pakistan is not challenged.[20]Notwithstanding that an applicant does not have leave to remain as a result of the non-satisfaction of the above conditions, that is not the end of the analysis. There are exceptions to the Rules. Appendix FM, which relates to family members, creates exceptions for those seeking to enter or remain in the United Kingdom on the basis of their family life with a person who is a British citizen. In the General section of Appendix FM the “Purpose” of the exception is set out:
“This route is for those seeking to enter or remain in the UK on the basis of their family life with a person who is a British Citizen, is settled in the UK, or is in the UK with limited leave as a refugee or person granted humanitarian protection. It sets out the requirements to be met and, in considering applications under this route, it reflects how, under Article 8 of the Human Rights Convention, the balance will be struck between the right to respect for private and family life and the legitimate aims of protecting national security, public safety and the economic well-being of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others. It also takes into account the need to safeguard and promote the welfare of children in the UK”
. The purpose of Appendix FM is, accordingly, to build into the fabric of the Immigration Rules Article 8 type considerations. In this section it is stipulated that the requirement for limited leave to remain as a partner includes that the applicant must meet all of the requirements of “Section E-LTRP”. One such requirement, set out in E-LTRP.2.2 is that:
“The applicant must not be in UK in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX. applies”
. Once again it is common ground in the present case that the Claimant had overstayed his permitted period by a substantial period amounting to approximately two years and eight months by the time of the application. However, because E-LTRP.2.2 makes reference to exceptions in “paragraph EX.”, this is, yet again, not the end of the story.[21]Section EX (i.e. exceptions) addresses two factual situations. First, where the applicant has a genuine and subsisting parental relationship with a child (which is accordingly not relevant in this case). Secondly, where: “(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK”.[22]Guidance has been provided for officials as to the meaning of exceptional circumstances and insurmountable obstacles. That guidance was applied in the present case. In particular the August 2013 Decision applied the “Partner and ECHR Article 8 guidance” of October 2013. Notwithstanding that the guidance appears to post-date the decision in issue it was not disputed in the course of the hearing that in actual fact the substance of this particular guidance was being applied prior to promulgation and, indeed, was applied when the August 2013 Decision was taken.[23]Paragraph 3.2.8 of the October 2013 guidance concerns exceptional circumstances. For present purposes it suffices to cite the following from that section:
“Where an applicant does not meet the requirements of the rules under Appendix FM and/or Appendix FM-SE, refusal of the application will normally be appropriate. However, leave can be granted outside the rules where exceptional circumstances apply. Where an applicant fails to meet the requirements of the rules, caseworkers must go on to consider whether there are exceptional circumstances. “Exceptional” does not mean “unusual” or “unique”
. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in EX.1 of Appendix FM have been missed by a small margin. Instead, “exceptional” means circumstances in which refusal would result in unjustifiably harsh consequences for the individual or their family such that refusal of the application would not be proportionate. That is likely to be the case only very rarely. In determining whether there are exceptional circumstances, the decision-maker must consider all relevant factors, such as: a) The circumstances around the applicant’s entry to the UK and the proportion of the time they have been in the UK legally as opposed to illegally. Did they form their relationship with their partner at a time when they had no immigration status or this was precarious? Family life which involves the applicant putting down roots in the UK in the full knowledge that their stay here is unlawful or precarious, should be given less weight, when balanced against the factors weighing in favour of removal, than family life formed by a person lawfully present in the UK. b) Cumulative factors should be considered. For example, where the applicant has family members in the UK but their family life does not provide a basis for stay and they have a significant private life in the UK. Although under the rules family life and private life are considered separately, when considering whether there are exceptional circumstances private and family life can be taken into account”. a) The circumstances around the applicant’s entry to the UK and the proportion of the time they have been in the UK legally as opposed to illegally. Did they form their relationship with their partner at a time when they had no immigration status or this was precarious? Family life which involves the applicant putting down roots in the UK in the full knowledge that their stay here is unlawful or precarious, should be given less weight, when balanced against the factors weighing in favour of removal, than family life formed by a person lawfully present in the UK. b) Cumulative factors should be considered. For example, where the applicant has family members in the UK but their family life does not provide a basis for stay and they have a significant private life in the UK. Although under the rules family life and private life are considered separately, when considering whether there are exceptional circumstances private and family life can be taken into account”.[24]In relation to insurmountable obstacles paragraph 3.2.7c provides guidance on when such “insurmountable obstacles” will or will not exist. It provides, so far as relevant: “When assessing an application under paragraph EX.1.(b), in determining whether there are “insurmountable obstacles”, the decision-maker should consider the seriousness of the difficulties which the applicant and their partner would face in continuing their family life outside the UK, and whether they entail something that could not (or could not be expected to) be overcome, even with a degree of hardship for one or more of the individuals concerned. The assessment of whether there are “insurmountable obstacles” is a different and more stringent assessment than whether it would be “reasonable to expect” the applicant’s partner to join them overseas. For example, a British Citizen partner who has lived in the UK all their life and speaks only English may not wish to uproot and relocate halfway across the world, but a significant degree of hardship or inconvenience does not amount to an insurmountable obstacle. ECHR Article 8 does not oblige the UK to accept the choice of a couple as to which country they would prefer to reside in. The decision-maker should look at whether there is an inability to live in the country concerned. The focus should also be on the family life which would be enjoyed in the country to which the applicant would be returned, not a comparison to the life they would enjoy were they to remain in the UK. Lack of knowledge of a language spoken in the country in which the couple would be required to live would not usually amount to an insurmountable obstacle. It is reasonable to conclude that the couple must have been conversing in a commonly understood language whilst in the UK. Therefore, it is reasonable for that to continue outside the UK, whether or not the partner seeks to learn a/the language spoken in the country of proposed return. The factors which might be relevant to the consideration of whether an insurmountable obstacle exists include but are not limited to:(a) Ability of family to lawfully enter and stay in another country. The decision-maker should consider the ability of the parties to lawfully enter and stay in the country concerned. However, the onus should be on the applicant to show that this is not possible in order for this to amount to an insurmountable obstacle. A mere wish/desire/preference to live in the UK would not amount to an insurmountable obstacle.(b) Cultural barriers. This might be relevant in situations where the partner would be so disadvantaged that they could not be expected to go and live in that country. It must be a barrier which either cannot be overcome or would present a very high degree of hardship to the partner such that it amounts to an insurmountable obstacle.(c) The impact of a mental or physical disability. Whether or not either party has a mental or physical disability, a move to another country may involve a period of hardship as the person adjusts to their new surroundings. But a physical or mental disability could in some circumstances mean that the degree of hardship which would be experienced by the person would be such that it amounts to an insurmountable obstacle”. (a) Ability of family to lawfully enter and stay in another country. The decision-maker should consider the ability of the parties to lawfully enter and stay in the country concerned. However, the onus should be on the applicant to show that this is not possible in order for this to amount to an insurmountable obstacle. A mere wish/desire/preference to live in the UK would not amount to an insurmountable obstacle. (b) Cultural barriers. This might be relevant in situations where the partner would be so disadvantaged that they could not be expected to go and live in that country. It must be a barrier which either cannot be overcome or would present a very high degree of hardship to the partner such that it amounts to an insurmountable obstacle. (c) The impact of a mental or physical disability. Whether or not either party has a mental or physical disability, a move to another country may involve a period of hardship as the person adjusts to their new surroundings. But a physical or mental disability could in some circumstances mean that the degree of hardship which would be experienced by the person would be such that it amounts to an insurmountable obstacle”. (4). Case law on Article 8[25]In this section I address the recent case law which focuses upon issues arising in the present case. In particular I have identified authorities which explain: the relationship between the Immigration Rules and guidance and Article 8; the nature of the evaluative exercise required under Article 8; how the precariousness (or otherwise) of an applicant’s position must be assessed; and what is meant by exceptional circumstances and “insurmountable obstacles”. Further analysis of case law relating to insurmountable obstacles is set out at paragraphs [45]-[51] below.

(i) The two part test

[26]The recent judgment of Sales J in Nagre (ibid) addresses the manner in which the Defendant is required to apply Article 8 to claims that removal would infringe the family and private lives of a person. The Court approved the guidance given by the Upper Tribunal in Izuazu (ibid) at paragraphs [40]-[43] which endorsed the adoption of a two part test to the application of Article 8. In summary according to the two part test a judge called upon to make decisions about the application of Article 8 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 and if he or she does there will be no need to proceed to consider Article 8 generally because the appeal can be allowed because the decision is not in accordance with the Rules. However, where a claimant did not meet the requirement of the Rules it is then necessary for the judge to proceed to make an assessment of Article 8 applying the criteria established by law.[27]With regard to the two part test Sales J added the following at paragraph [30]: “The only slight modification I would make, for the purposes of clarity, is to say that if, after the process of applying the Rules and finding that the claim for leave to remain under them fails, the relevant official or Tribunal Judge considers that 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 be sufficient simply to say that; they would not have to go on, in addition, to consider the case separately from the Rules. If there was no arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8, there would be no point in introducing full separate consideration of Article 8 again after having reached a decision on application of the Rules”.[28]In paragraphs 35 and 36 Sales J added as follows: “35. The important points for present purposes are that there is full coverage of an individual’s rights under Article 8 in all cases by a combination of the new rules and (so far as may be necessary) under the Secretary of State's residual discretion to grant leave to remain outside the Rules and that, consequent upon this feature of the overall legal framework, there is no legal requirement that the new rules themselves provide for leave to remain to be granted under the Rules in every case where Article 8 gives rise to a good claim for an individual to be allowed to remain. This had always been the position in relation to the operation of the regime of immigration control prior to the introduction of the new rules, and the introduction of the new rules has not changed these basic features of the regime. 36. Therefore, in my judgment, the Claimant's challenge to the lawfulness of the new rules fails. No matter how closely, or not, the new rules track the detailed application of Article 8 in individual cases, the immigration control regime as a whole (including the Secretary of State's residual discretion) fully accommodates the requirements of Article 8. The fact that the new rules do not do that in all cases by themselves does not render them unlawful”. (ii) The overall evaluative exercise/“precarious” rights[29]The case of Nagre emphasises that no one particular fact is dispositive and that there will always need to be an overall assessment of the facts. It also provides guidance on so called “precarious” family life cases. That case involved a claimant who had overstayed his leave and who upon expiry of his permission to remain, had formed a relationship with an individual which relationship was then said to constitute relevant family life for Article 8 purposes. There were no children affected by the decision. The family life was established at a time when it was known to be precarious because of the absence of any right on the part of the claimant to remain in the United Kingdom. The extent to which an applicant’s family life can be said to be precarious is highly fact specific. The cases show that the more precarious the family life relationship the weaker the right to remain. In paragraphs [39] and [40] of the judgment in Nagre Sales J recited the clear and constant jurisprudence of the Strasbourg Court which highlights the broad fact specific analysis to be adopted and which shows that factors such as precariousness and whether insurmountable obstacles exist to relocation are simply factors, amongst others, to be taken into consideration. For example, in Rodrigues Da Silva & Hoogkamer v Netherlands (2007) 44 EHRR 34 at paragraph [39] the Strasbourg Court stated as follows: “The Court reiterates that in the context of both positive and negative obligations the State must strike a fair balance between the competing interests of the individual and of the community as a whole. However, in both contexts the State enjoys a certain margin of appreciation. Moreover, Article 8 does not entail a general obligation for a State to respect immigrants' choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration control (e.g., a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion. Another important consideration will also be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. The Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8”. (iii) Exceptional circumstances[30]In MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 the Court of Appeal endorsed the ruling of Sales J in Nagre (see paragraphs [41]-[42]). The Court also made clear that reference to exceptional circumstances was not to be taken as a re-introduction of a limited exceptional circumstances jurisdiction which had been hitherto criticised in the case law. On the contrary it was now to be construed as a “weighing exercise…carried out compatibly with the Convention” (ibid paragraph [38]). (iv) Good arguable case needed to trigger an Article 8 review outwith the Rules[31]In Nagre Sales J came to the following conclusion about the application of Article 8 to cases which might be described as “precarious family life cases”: “In my judgment, the correct analysis of the position is that which I have set out above by reference to the Strasbourg case-law. The consequence, in my view, is that in the majority of precarious family life cases where removal is in question, where the Secretary of State's officials conclude that the family member who is applying for leave to remain cannot satisfy the test in Section EX.1(b) in the new rules, it is unlikely that there will be a good arguable case (let alone a case that is ultimately found to be established) that Article 8 would require that leave to remain should be granted outside the Rules”.[32]In SSHD v Gulshan [2013] UKUT 00640 (IAC) Cranston J and UT Judge Taylor, having considered Nagre and MF (Nigeria), concluded that given that Article 8 was built into the Rules it would only be if there were “arguable good grounds” for granting leave to remain outside the Rules that it was necessary to proceed further to consider whether there were additional “compelling circumstances” which were relevant to Article 8 which needed to be taken account of (ibid para [24]).

(v) Need to avoid a tick box approach

[33]Finally, I would endorse the observations made in a number of authorities that the use of the expression “exceptional cases” in the guidance of the Secretary of State risks being misunderstood. In particular it is important that officials applying the residual exceptional circumstances policy should be vigilant to avoid a tick box mentality and should bear the policy guidance in mind seeking to stand back after working through the analysis required so as to formulate in an overall manner a view as to whether there might be a good arguable case of disproportionality if leave to remain was not granted. (5). Failure by the Defendant to apply the two part test[34]I turn now to consider the individual challenges made to the August 2013 Decision.[35]The first attack is that in the Decision the SSHD failed to consider Article 8 ECHR outside of the Immigration rules and her failure to apply the two part test in a proper manner renders the decision unlawful and irrational.[36]The challenge was mounted, first, upon the basis that the SSHD erred in law in failing to conduct a separate, discrete, Article 8 assessment outside of the Rules, and secondly, upon the basis that the August 2013 Decision revealed clear errors in assessment.[37]Notwithstanding the attractive way in which the case was argued I cannot accept this either as a proposition of law or as an accurate reflection of the reasoning in the decision.[38]First, as to the submission that in law a separate Article 8 assessment must occur outside of the rules it is apparent from the cases set out above that Article 8 considerations are embedded into the Rules and the Guidance such that if the SSHD applies those Rules and Guidance then, ordinarily, Article 8 considerations will have been fully catered for. This was the point made by Sales J in Nagre at paragraphs [27]-[29]. The Rules and the Guidance do leave open a discretion to the SSHD to permit exceptional circumstances to be taken into account. The case law makes clear that the concept of exceptional circumstances must be assessed from the perspective of proportionality and with Strasbourg jurisprudence in mind: See paragraph [30] above. In short the conventional Article 8 proportionality appraisal is one conducted within the framework of the Rules and the Guidance because they have been structured to isolate the relevant Article 8 factors and to enable officials applying the rules to take those considerations on board. In the present case no good arguable grounds have been advanced that there were factors particular to the Claimant that are not capable of being assessed from within the existing framework of rules and guidance and which therefore needed to be assessed outwith the Rules (see paragraph [31] and [32] above).[39]Secondly, when one examines the August 2013 Decision as a whole the Secretary of State did take into account all of the factors and matters which are relevant to this Claimant. The fact that the Secretary of State took these considerations into account when applying the Rules does not mean to say that it is necessary, artificially, to duplicate the self-same exercise outside of the Rules. Logic (as well as the law) dictates that if an adequate assessment has occurred within the framework of the Rules it is not necessary, simply for the sake of form, to make an identical assessment under the heading “outside the Rules”.[40]In the present case Ms Rutherford, for the Claimant, identified the following as matters which she submitted had not been properly taken into account:(i) that the Claimant had arrived in the UK lawfully and had been the beneficiary of two consecutive decisions permitting him to remain albeit not permanently;(ii) that his overstaying his leave was inadvertent and should not be held against him;(iii) that both when he arrived and thereafter the Claimant had a genuine and subsisting spousal relationship which amounted to family life; and (iv), that this could not on any view be considered to be a “precarious” family life right. I will address each of these points separately.[41]The Claimant initially had a lawful right to reside: This is correct and recognised in the August 2013 Decision at paragraph [5]. However, it is recognised in the Rules and indeed in Strasbourg case law (see e.g. Rodrigues Da Silva cited at paragraph [29] above) that whether an applicant has outstayed his lawful right to remain is a factor which is relevant (albeit not dispositive) to the overall assessment that has to be made. It is not in my judgment a factor that materially assists the Claimant. The fact that the Claimant started out with a lawful right to remain might place that person on a better footing that a person who entered the country illegally and who therefore never acquired lawful rights; but it is not a factor which in the present case can carry decisive weight. The SSHD pointed out that the Claimant had outstayed his permission by about 2 years and 8 months when he finally applied for the right to remain. This is not an immaterial period of time and was a factor the SSHD was entitled to have regard to, inter alia.[42]Inadvertent error: Ms Van Overdijk, for the SSHD did not suggest that the correctness of the Claimants explanation of inadvertent error was something that this Court had to rule upon. She submitted that regardless of whether that explanation was true or false, the position of the SSHD was still the logical and correct one. This was, as set out in the Decision, that it was the responsibility of all applicants to ensure that they abided by the rules. The SSHD could not possibly be responsible for prompting applicants or cajoling them into action. The onus lay squarely on each applicant to ensure that they knew what the rules were. Although she did not address the merits of the Claimants position she did not hide her scepticism pointing out that in any event on his own evidence the Claimant had learned of his error in January 2012 (see paragraph [3] above) but it was not until June 2012 that he got around to making an application to remain. In the interim he made efforts to seek the requisite English language skills certificate but he failed to obtain certification from an approved source and Ms van Overdijk referred to the well know problems that the SSHD confronts in the form of bogus educational establishments providing certificates that are unreliable as evidence of linguistic proficiency. I agree with the statement of principle which Ms van Overdijk articulated and which is reflected in paragraph [21] of the Decision. It is not for the SSHD to prompt applicants; the responsibility for complying with the rules lies with applicants themselves. I would actually go one step further. It seems to me that in principle it cannot be right that a person can acquire additional rights through inadvertence relative to a person who is diligent and who observes the rules. A rule which rewarded dilatoriness or forgetfulness would create a powerful if not overwhelming perverse incentive on applicants to suffer selective amnesia or carelessness. The fact that the Claimant overstayed his permission by a very lengthy period of time, whether through inadvertence or otherwise, is not a factor which can either (at least normally in the absence of some fairly exceptional circumstances – which do not arise here) weigh in his favour or be neutral; it is a fact against the applicant.[43]The strength of the genuine and subsisting spousal relationship which amounted to family life: The existing and genuine nature of the family connection was a matter recognised by the SSHD in the August 2013 Decision. It is after all the very starting point from which the right to family life was assessed. However, it is clear that it is not an absolute right. I have set out the case law which makes clear that all factors have to be weighed in the balance and that depending upon the facts of the individual case the factors will attract a different gravitational weight in the appraisal. In the present case the fact that the marriage was genuine and subsisting was recognised in the decision but was balanced against a range of other factors including, but not limited to, the ability of the Claimant and his spouse to maintain that relationship outside of the UK, in Pakistan.[44]The Claimant’s family right is not “precarious”: I agree with Ms Rutherford that the Claimant’s family right cannot be described as “precarious”, and it is certainly not remotely comparable to the “precariousness” of the right that was asserted by the Claimant in Nagre (see paragraph [29] above). Ms Rutherford contended that the SSHD erred by, in effect, overstating the importance of this factor. Case law indicates that where there is a right that can properly be described as highly precarious then that will weigh very heavily in the scales against an applicant. However, given that the Article 8 assessment is an overall assessment where each factor placed upon the scales must be accorded an appropriate and individual weight it is necessary to see just what weight the SSHD in this case did place upon the “precariousness” factor. If on analysis the SSHD has overstated the precariousness factor then that might well vitiate the decision. However, in my judgment the Decision accurately records the facts and then relies upon those facts as part of an appropriate overall weighing up process. The matters referred to by the SSHD in paragraph 21 of the August 2013 Decision are: the fact that the Claimant outstayed his permission; that he took over two years to attempt to regularise his position after his previous leave expired; and that even if it was an oversight this nonetheless was his “responsibility”. Paragraph 22 of the Decision is also relevant here. It states:
“22. It is also not recognised that your client raised any circumstances with his original application that could be deemed to be exceptional. It is accepted that your clients wife is a British citizen who has been in the United Kingdom for a number of years, but for the reasons previously mentioned, on its own, this is not sufficient for the Secretary of State to exercise her discretion by granting leave on an outside the rules basis.”
The SSHD hence also addressed herself to the particular position of the Claimants wife, and her period of residence in the UK and her status as a citizen in the UK and, by cross reference, brought into play all of the other factors which had led the SSHD to conclude that her position, in combination with his, was not sufficient in the weighing exercise to lead to a positive decision in the Claimants favour. In summary whilst Ms Rutherford was quite right to distinguish Nagre, in this case the SSHD did not conclude that the family right was highly precarious. Here the SSHD identified the correct facts and simply took them into consideration as part of a more general and overall assessment. The Claimant at no point in time had a guarantee that he would be given a permanent right to residency in the United Kingdom and, further, part of the period of time relied upon by the Claimant to found his claim for family life covers a period when he was unlawfully in the United Kingdom. There was hence an element of precariousness but not a very strong one; but in my judgment the Defendant did not mischaracterise the factor nor give it undue weight. (6). Insurmountable obstacles[45]The second way in which Ms Rutherford put the Claimants case was that the SSHD had placed far too great a reliance upon her conclusion that there were no insurmountable obstacles (within the meaning of EX.1(b) of the Immigration Rules) and in so doing she had, once again, failed to have regard to relevant Article 8 considerations which apply regardless of the conclusion that she arrived at in relation to insurmountable obstacles.[46]The law makes clear that whether there are insurmountable obstacles to relocation is a relevant consideration under Strasbourg case law. It also makes clear that the assessment is one which is multifaceted and, as with all other factors, will be case specific. Case law indicates that it is not generally or necessarily a breach of Article 8 to refuse entry or to remove a person if there were no insurmountable obstacles to a family life living elsewhere: see for example Y v Russia (2010) 51 EHRR 21; PP & Others v UK (1996) 21 EHRR CE 81; Gul v Switzerland (1996) 22 EHRR 93 and Ahmut v Netherlands (1996) 24 EHRR 62.[47]In MF (Nigeria) (ibid) the Court of Appeal heard argument about the meaning of the phrase “insurmountable obstacles”. On the facts resolution of the issue did not arise. The Court nonetheless stated: “We would observe that, if "insurmountable" obstacles are literally obstacles which it is impossible to surmount, their scope is very limited indeed. We shall confine ourselves to saying that we incline to the view that, for the reasons stated in detail by the UT in Izuazu at paras 53 to 59, such a stringent approach would be contrary to Article 8”.[48]In Izuazu (ibid) the UT encapsulated the principle in the following pithy statement: “It is thus the degree of difficulty the couple face rather than the ‘surmountability’ of the obstacle that is the focus of judicial assessment but again as a factor rather than a test”.[49]The SSHD in her guidance (see paragraph [24] above) makes clear that in her assessment of a case she acknowledges that this is very much part of the Article 8 proportionality evaluation and there describes a test which is consistent with the formulation of the criteria laid down in case law.[50]Applying these criteria I can detect no error of law in the approach adopted by the SSHD in this decision.[51]If there is an error it can only be in the manner in which the SSHD applied the law to the facts. And as to this the August 2013 Decision is on its face a fact specific evaluation. It focuses upon the particular facts relating to the Claimant and his spouse. None of those actual facts are challenged in this judicial review as being incorrect. It would indeed have been very difficult so to do since, as the SSHD records in the August 2013 Decision, no evidence was adduced by the Claimant to support a case that there were insurmountable obstacles to relocation and on the facts as recorded there is no clear or obvious error in the SSHD’s assessment such as would make that evaluation irrational or disproportionate. Prima facie the SSHD was entitled to consider the Claimants case from within the confines of the Immigration Rules and the Guidance. The facts as presented to the SSHD fell for appraisal within EX.1 and the Guidance. Put another way no facts were presented which necessitated consideration from outwith the Rules or Guidance. The SSHD concluded that there were no insurmountable obstacles. She took into account: that the Claimant’s wife had lived for the majority of her life outside the UK; that no evidence had been tendered to suggest that the desire to live in the UK was anything save a preference; that the Claimant did not have children or work in the UK or own property here; that overseas the Claimant and his wife would not be barred from seeking employment; that both the Claimant and his wife should have been aware that the Claimant had no lawful right to remain in the UK at the time of his application; and, that there was no reason to believe that he did not have appropriate ties in Pakistan. This was a balanced and proportionate assessment arrived at through application of the relevant principles. (7). Conclusion[52]For all these reasons this application does not succeed.

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