Sunassee, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2015] EWHC 1604 (Admin)

Case No CO/100/2015[2015] EWHC 1604 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date:
Before
MR JUSTICE EDIS
Between
THE QUEEN On the application of DEVINDRA SUNASSEEClaimantUPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)DefendantSECRETARY OF STATE FOR THE HOME DEPARTMENTInterested Party
Zane Malik (instructed by Malik Law Chambers Solicitors) for ClaimantCharles Banner (instructed by Treasury Solicitor) for Interested PartyHearing Hearing date: 8 th May 2015
JudgmentMr. Justice Edis:
[1]This is a “rolled up” hearing of the claimant’s application for permission to apply for Judicial Review of a decision of the Upper Tribunal Immigration and Asylum Chamber (UTIAC) promulgated on 19th December 2014 whereby it refused the claimant permission to appeal against a decision of the First-tier Tribunal (FTT). In directing this hearing, Green J said that it is arguable that in view of recent judicial pronouncements following Gulshan [2013] UKUT 640 (IAC) the FTT and UTIAC might have erred. He said that it was unclear whether any different approach would have made any difference on the facts and that since the Judge dealing with permission would have to consider the facts and the law with some care, the same Judge could proceed to determine the substantive application if it proved to be arguable.

Procedural History

[2]On 30th May 2013 the claimant, who is a citizen of Mauritius, made an application to vary leave to remain in the United Kingdom on Article 8 grounds, which was refused by the Secretary of State for the Home Department (SSHD) on the 5th July 2013. The SSHD also gave directions for removal under section 47 of the Immigration, Asylum and Nationality Act 2006. On 9th July 2014 the FTT heard the claimant’s appeal against that decision and dismissed it on 15th July 2014. The FTT refused his application for permission to appeal on 16th September 2014. UTIAC dismissed his renewed application for permission to appeal on 19th December 2014. The appeal procedure therefore occupied nearly 18 months.

Summary of Claimant’s Immigration History

[3]The claimant is now 32 years old, having been born on 20th January 1983. He has two dependants, namely his wife (also a citizen of Mauritius) and their son who was born on 28th April 2012 in the United Kingdom. The claimant arrived in the United Kingdom on 13 September 2004 with entry clearance as a student valid from 9th September 2004 to 31st October 2006. He was married on the 18th November 2005 in Mauritius. His leave to remain as a student was subsequently successively extended until it expired on 31st May 2013. On the day before that leave expired he made his Article 8 application. As at that date he had been lawfully in the United Kingdom for 8 years and 8 months. The FTT Judge was to find that he had last studied as a student in the United Kingdom in 2011. After that time he had been working to the extent permitted by his visa.

The Decision of the SSHD

[4]The SSHD refused applications by the claimant and his wife under the Immigration Rules applying what are described in the authorities as “the New Rules”, which came into effect on 9th July 2012 with further amendments in September 2012. Having determined that the applicants were not entitled to succeed under the Rules, the SSHD then addressed the claim under Article 8 of the European Convention on Human Rights. The letter gave similar reasons for refusal both in the case of the claimant and his wife. It is worth explaining that section 117B(6) of the Nationality, Immigration and Asylum Act 2002 came into force on 28th July 2014 and was not in force at the time of the decisions by the SSHD and the FTT in this case. It would not have affected the outcome in a way which assisted the claimant because the child of the family had not lived in the United Kingdom for seven years or more, and was not a “qualifying child” for the purposes of those provisions.[5]The SSHD decided i) That the claimant failed to meet the Eligibility Requirements of Appendix FM (family members) and thus could not benefit from the requirements of Section EX.1 of that Appendix. In any event, they could not succeed under EX.1 because the child had lived in the UK for less than seven years. ii) They did not meet the requirements of Paragraph 276ADE of the Immigration Rules which governs applications for leave to remain on the ground of private life, and which requires, in the case of an adult, a period of residence in the UK of not less than 20 years. Alternatively, in the cases of adults of this age, it requires a finding that the applicant has lost ties with the country to which s/he would be removed if the application were to fail. The claimant had lived the first 21 years of his life in Mauritius and had left that country in 2004. The SSHD concluded that he had not lost ties with the country of his birth. iii) The claimant’s application therefore fell to be considered “outside the rules” and the decision letter said that it was accepted that the claimant and his family had enjoyed living and working in the UK and that they would like their child to benefit from the educational system here. However, these considerations did not amount to exceptional circumstances warranting the exercise of discretion in their favour to grant leave to remain in the UK outside the Immigration Rules under Article 8 of the Convention. This is a conventional way in which the SSHD expressed decisions of this kind.

The FTT Decision

[6]The FTT Judge, Judge Doran, gave a careful and detailed ruling having heard oral evidence. He heard appeals by both the claimant and his wife. The appeal was against the third part of the decision of the SSHD, the decision on the claim outside the Rules. The decisions made under the Rules were not challenged. The decision was promulgated on 15th July 2014, about 8 weeks before the 10th anniversary of the claimant’s arrival in the UK. It was accepted on behalf of the SSHD that the claimant had established a private life in the UK, but contended that they had still ties in Mauritius and would not have any difficulty re-establishing themselves there. The private life in the United Kingdom had been established with no expectation that they would be allowed to remain in the United Kingdom. It was therefore in the language of this jurisdiction “precarious”. Further, although here on a student visa, the claimant had not been engaged in any studies since 2011. It was submitted that the family life could be continued without interference if the whole family relocated to Mauritius.[7]The claimant relied on the fact that he would very soon have satisfied the long residence requirement under paragraph 276B of the Rules (“the 10 year rule”).[8]The Judge decided that the best interests of the child required that he should stay with his parents. He applied the five stage process set out by the House of Lords in R (Razgar) v. SSHD [2004] 2 AC 368, finding that refusal of the application would not involve any interference with any family life, but it would interfere with the claimant’s private life. He assessed the gravity of the consequences of the interference, concluded that it was lawful and that there was a legitimate aim achieved by it, and that it was proportionate to that legitimate aim. The operative part of his decision is in paragraphs 54 and 55 which read:- “54. Whilst I acknowledge the point made by [counsel for the claimant] that the first appellant has now been in the United Kingdom for almost 10 years, equally throughout this time he has had no legitimate expectation that he would be permitted to remain permanently. Furthermore, of his own admission, he was last granted leave to remain as a student in 2010 and he has not undertaken any student activities since 2011 but nevertheless remained in the UK and continued to work under his student visa, establishing his private and family life against such a background. He indicates that his solicitors wrote to the Home Office about his circumstances but no such letters have been produced before me to confirm this and no documents have been produced to show he was trying to enrol with other colleges after 2011 and his application to remain as far as these proceedings were concerned was not lodged until one day prior to the expiration of his visa on the 30th May 2013. “55. Taking all matters into consideration therefore I am not satisfied that there are any arguable grounds for granting leave to remain to either appellant outside of the Immigration Rules and therefore it is not necessary for Article 8 purposes to go on to consider whether there are any compelling circumstances not sufficiently recognised under the Rules to move on to the second stage and consider the Article 8 proportionality exercise. In any event, even if it were, I am satisfied that the appellants would not suffer unjustifiably harsh consequences if they were removed to Mauritius such that their removal amount to a disproportionate exercise of immigration control.”[9]Paragraph 55 requires careful analysis. It follows a statement of the law in paragraphs 35-40, and then turns to address and apply the law. The first consideration he addresses is the best interests of the child, considering the family context, the nationality of the child (then aged 2), his cultural and religious traditions, his health, language and education. The Judged noted that there was no evidence that this 2 year old child had established any links outside the family. The conclusion as to his best interests is that they lay in being brought up by his parents. The Judge then concluded that the return of this family to Mauritius would not amount to an interference with its family life, which would continue. The Judge then turned to the Razgar 5 stage test and considered the circumstances of the parents so far as the private life claim was concerned. The Judge summarised the qualifications which the claimant had achieved during his lengthy studies in the United Kingdom (2004-2011). He concluded that they would stand him in good stead in Mauritius and was not persuaded by the claimant’s evidence that he would find it difficult to obtain work there. He noted that he seemed to have made no enquiries about this. There is no challenge to this conclusion, and it would be hard to sustain one. No doubt the claimant, who was here always on a temporary student visa, chose his courses because he thought they would help find work when he went back to Mauritius. That is no doubt, usually, the point of a student visa. At some stage, not investigated by the Judge, he decided not to go home, if he could avoid it. An important question was whether that decision had anything to do with his private life in this country. As to that the Judge said “Both appellants have indicated that they have established a strong private life in the United Kingdom but save for their employment no specific evidence has been produced indicating the range or extent of any private life established here.”[10]The Judge then turned to consider what private life was available to the claimant in Mauritius and noted that his parents (and his wife’s parents) were all alive and living there, as were his two unmarried sisters. The Judge concluded that there was family support for him in re-integrating into society on his return.[11]Paragraph 54 is set out above. It concerns the aspects of the claimant’s life in the United Kingdom which would be relevant to weighing the importance of the fact that at the date of the SSHD’s decision he had been here for nearly 9 years and at the date of the appeal for nearly 10.[12]The Judge therefore weighed up all relevant factors which had been placed before him in order to decide the Article 8 claim. In paragraph 55 he said that it was not necessary for him to what, in fact, he had just done. He said it was not necessary to “move on to the second stage and consider the Article 8 proportionality exercise.” He then went on to say that even if he were to carry out such an exercise, he would find in favour of the SSHD because the removal would not be disproportionate because it would not cause unjustifiably harsh consequences for the appellants. The origin of that test is a passage of guidance published by the SSHD for caseworkers considering applications for leave to remain outside the rules which had been set out earlier in the decision and which I set out below, at paragraph 21.

The issues on this application

[13]The claimant’s attack in the subsequent three challenges to that decision was focussed on paragraph 55. In the applications to the FTT and then UTIAC for permission to appeal, and now before me, it is submitted that the Judge fell into error in holding that where there were no arguable grounds for granting leave to remain outside the Rules it was not necessary to carry out a proportionality exercise to determine the Article 8 claim. It is submitted that it is clear that the Judge did not carry out such an assessment even in the alternative because the last sentence of the relevant paragraph applied the “unjustifiably harsh consequences” test which is used in the Guidance to explain the meaning of the “exceptional circumstances” test in what should have been a more open-textured assessment of proportionality under Article 8. Razgar allows no such qualifying tests, as will appear below.[14]The second issue which is raised is that the application for permission to appeal which is the subject of this judicial review was an application for permission to bring a second appeal, to which special rules apply. This requires consideration of CPR 54.7A(7) and R (Cart) v. Upper Tribunal [2012] 1 AC 633.

The proper approach to Article 8 outside the New Rules

[15]It is necessary to set out some of the history of the approach which has been taken by the courts to this question.[16]Regina (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 A.C. 368 established the principled approach, and explained the five stage test in paragraph 17 of the speech of Lord Bingham:- “In a case where removal is resisted in reliance on article 8, these questions are likely to be:(1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?(3) If so, is such interference in accordance with the law?(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”[17]In Huang v Secretary of State for the Home Department [2007] UKHL 1, [2007] 2 A.C. 167 Lord Bingham gave the opinion of the Committee. At paragraph 20, he said of the assessment of proportionality:- “20 In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test.”[18]The approach to claims based on the right to enjoyment of private life under Article 8 is somewhat different from that to family life claims, and Lord Bingham was there speaking about the latter. However, there is no difference in the legal test to be applied. The balance may be different in private life claims, because such claims are accorded rather less weight than family life claims. As noted above, the FTT and the SSHD had both approached the present case as a private life claim, because of their finding that on removal the whole family will relocate together and their family life will therefore continue unaffected.[19]In July 2012 the SSHD introduced the New Rules. Their purpose was to incorporate many considerations relevant to Article 8 rights into the Rules so as to provide an Article 8 compliant decision making-structure. The aim was to limit the scope for free-standing Article 8 claims by requiring the decision maker applying the Rules to give weight to the factors which would be relevant to the test of proportionality. This has led to a series of recent cases, which it is important to identify in the order in which they were decided.[20]R (Nagre) v. SSHD [2013] EWHC 720 (Admin) was decided on 28th March 2013 by Sales J, as he then was. It was a challenge to the lawfulness of part of the New Rules introduced by HC 194 in July 2012 and contained in Appendix FM (Family Members) including EX.1. These provisions concern family life and include Rules which govern applications for leave to remain as a partner of a person within the UK. There was also a challenge to paragraph 276ADE, a new Rule which addresses private life claims. The issue was whether these Rules so far from facilitating compliance with Article 8 were in fact incompatible with it. The present case is concerned with a decision of a Tribunal, and not of officials applying guidance. The right of appeal which led to the Tribunal decision arises under section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002 as in force at the relevant time The provisions summarised here as to appeal changed fundamentally with effect from October 2014. . The decision of the SSHD was an immigration decision. Section 84 as it then stood enabled appeals to be brought on the basis that (among other things) the decision was unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.Whereas the original decision was taken applying the guidance, necessarily a Tribunal considering the lawfulness of the decision under section 6 of the 1998 Act carries out a different exercise. At the material time, in the context of a decision such as the present, the FTT was enabled by section 85(4) of the 2002 Act to consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.This kind of appeal is not therefore limited to a review, but will, in many cases, result in a decision being taken by a different process and on different evidence from that produced the “first instance” decision of the SSHD. It is more akin to an appeal by re-hearing than a review, except that the appeal is actually the first hearing rather than a re-hearing. Further, the guidance, which the official will be bound to follow, will be given such weight as the FTT considers it should properly have in the circumstances of the case before it.The remarks of Sales J about the way in which a decision may be made should be understood in that context. Although they do extend to both types of decision, they will be applied differently depending on whether the context is the administrative decision making of an official, or the judicial approach of the Tribunal.[21]At paragraphs 13 and 14, Sales J set out the guidance which the SSHD has developed and published for her officials and notes that there was no challenge to its lawfulness. This guidance was also cited by FTT Judge Doran in this case, and is the origin of the “unjustifiably harsh consequences” test which he applied. Sales J said this:- “13. Along with the introduction of these additions to the Immigration Rules, the Secretary of State issued instructions regarding the approach to be applied by her officials in deciding whether to grant leave to remain outside the Rules, in the exercise of the residual discretion she has to grant such leave. The Secretary of State requires such leave to be granted in exceptional cases, but in paragraph 3.2.7d of the instructions she has amplified the guidance for the approach to be adopted, in these terms:
“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”
. 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 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 application 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. If the applicant falls to be granted because exceptional circumstances apply in their case, they may be granted leave outside the rules for a period of 30 months and on a 10 year route to settlement.” 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.” “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”. 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 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 application 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. If the applicant falls to be granted because exceptional circumstances apply in their case, they may be granted leave outside the rules for a period of 30 months and on a 10 year route to settlement.”[22]They key passage of Nagre for the purposes of this case is at paragraphs 29-30:-29. Nonetheless, the new rules do provide better explicit coverage of the factors identified in case-law as relevant to analysis of claims under Article 8 than was formerly the position, so in many cases the main points for consideration in relation to Article 8 will be addressed by decision-makers applying the new rules. It is only if, after doing that, there remains an arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8 that it will be necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under the new rules to require the grant of such leave.30. I agree with the guidance given by the Upper Tribunal in Izuazu at paras. [40]-[43], as follows:
“40. We accordingly further endorse the Upper Tribunal's observation in [MF (Article 8 – new rules) Nigeria [2012] UKUT 00393 (IAC)] that judges 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.”
The only slight modification I would make, for the purposes of clarity, is to say that if, 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 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 is 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.”[23]The challenge to the lawfulness of the New Rules failed in Nagre because there was full coverage of the individual’s Article 8 rights by a combination of the New Rules and (so far as may be necessary) the SSHD’s residual discretion to grant leave to remain outside the Rules. The Judge then went on to consider particular parts of the New Rules which arise in the present case, namely EX.1 and paragraph 276ADE. EX.1 enables claims to succeed where particular eligibility and other requirements are not met. It is not a free-standing route around the other requirements of the Appendix FM, but introduces a degree of latitude where certain specified criteria are not met. In respect of those particular failures, a degree of flexibility is available within the Rules. In relation to claims based on a child who has lived in the United Kingdom for at least 7 years, the claim can succeed if it would not be reasonable to expect the child to leave the UK. In relation to claims based on a relationship with a partner with rights to remain in the United Kingdom, there must be “insurmountable obstacles to family life with that partner continuing outside the UK.” In this context Sales J said “42 Nonetheless, I consider that the Strasbourg guidance does indicate that in a precarious family life case, where it is only in “exceptional” or “the most exceptional” circumstances that removal of the non-national family member will constitute a violation of Article 8, the absence of insurmountable obstacles to relocation of other family members to that member's own country of origin to continue their family life there is likely to indicate that the removal will be proportionate for the purposes of Article 8 . In order to show that, despite the practical possibility of relocation (i.e. the absence of insurmountable obstacles to it), removal in such a case would nonetheless be disproportionate, one would need to identify other non-standard and particular features of the case of a compelling nature to show that removal would be unjustifiably harsh.”[24]Finally, at paragraphs 38-49, Sales J said “48 For these reasons, I do not accept Mr Malik's submission about the effect of EB (Kosovo) and VW (Uganda). 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. 49 Finally, I should mention that I do have some concern about the use of the label, “exceptional cases”, in the Secretary of State's guidance, to describe the area in which the Secretary of State's residual discretion operates. It is not wrong, as such, but there is some risk that busy, hard-pressed officials who refer only to the label might not clearly keep in mind the detail of the policy, and the particular nuance that the policy gives to the notion of exceptional cases, in identifying them with cases of disproportionality under Article 8. Officials should take care to avoid a “tick box” approach, genuinely bear the policy guidance in mind and seek to stand back after working through the analysis required under the new rules so as to make an overall assessment of the facts to see whether there might be a good arguable case of disproportionality if leave to remain is not granted and, if there is, to examine that case with care to see whether removal would be justified. The reasoning in decision letters should seek to demonstrate that this reasoning process has indeed been gone through.”[25]I have quoted extensively from Nagre because it introduces and provides the context for the criticisms of paragraph 55 of the decision of the FTT in this case. That paragraph is a very brief attempt to encapsulate and apply an approach which it is difficult to condense without misstating it.[26]On 23rd October 2013 the Upper Tribunal (Cranston J and Upper Tribunal Judge Taylor) decided Gulshan (Article 8 – new Rules – correct approach) [2013] UKUT 640 (IAC). At paragraph 24, the Tribunal said this which is also set out in the judicial headnote:- “On the current state of the authorities:(a) …………….(b) after applying the requirements of the Rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them: R (on the application of) Nagre v Secretary of State for the Home Department [2013] EWHC 720 (Admin);(c) the term “insurmountable obstacles” in provisions such as Section EX.1 are not obstacles which are impossible to surmount: MF (Article 8 – new rules) Nigeria [2012] UKUT 00393 (IAC); Izuazu (Article 8 – new rules) [2013] UKUT 00045 (IAC); they concern the practical possibilities of relocation. In the absence of such insurmountable obstacles, it is necessary to show other non-standard and particular features demonstrating that removal will be unjustifiably harsh: Nagre”[27]The finding at (b) above in Gulshan appears to be a restatement of the “slight modification” of Sales J in Nagre which is set out at paragraph 22 above. With great respect to the Upper Tribunal which decided Gulshan it seems to me to go a little further than the source from it purports to be derived. It is the origin of the problem with paragraph 55 of the decision in the present case, and I have already averted to the difficulty with it. It is unclear to me how a Tribunal could decide whether it was arguable that there may be good grounds for granting leave to remain outside the Rules without first considering whether there may be compelling circumstances not sufficiently recognised under them. Moreover, a Tribunal exercising statutory powers and bound by the Human Rights Act 1998 is traversing dangerous ground if it circumscribes its ability to consider the facts of the particular case before it in the round by a procedural filter. It may be that it is really a matter of how the decision is expressed, rather than how it is taken but the present case is an illustration, as I shall seek to explain, of how a proper decision may seem mystifying if expressed in unsuitable language.[28]This state of the authorities was considered in passing in the Court of Appeal in MM (Lebanon) v. SSHD [2014] EWCA Civ 985, decided on 11th July 2014 (between the hearing and the promulgation of the decision in this case). This case principally concerned the new Minimum Income Requirement in the New Rules. In commenting on the relevance of Nagre at paragraph 129, Aikens LJ, with whom the other members of the court agreed, said “The Nagre case does not add anything to the debate, save for the statement that if a particular person is outside the rule then he has to demonstrate, as a preliminary to a consideration outside the rule, that he has an arguable case that there may be good grounds for granting leave to remain outside the rules. I cannot see much utility in imposing this further, intermediary test. If the applicant cannot satisfy the rule, then there either is or there is not a further article 8 claim. That will have to be determined by the relevant decision-maker.”[29]The Court of Appeal reviewed the authorities on the relationship between the Rules and Article 8 and said, at paragraph 135:- “135 Where the relevant group of immigration rules, on their proper construction, provide a “complete code” for dealing with a person's Convention rights in the context of a particular immigration rule or statutory provision, such as in the case of “foreign criminals”, then the balancing exercise and the way the various factors are to be taken into account in an individual case must be done in accordance with that code, although references to “exceptional circumstances” in the code will none the less entail a proportionality exercise: see the MF (Nigeria) case [2014] 1 WLR 544 , paras 15–16, 44. But if the relevant group of immigration rules is not such a “complete code” then the proportionality test will be more at large, albeit guided by the Huang tests and UK and Strasbourg case law: see [2014] 1 WLR 544, para 45.”[30]On 12th February 2015 the Court of Appeal Civil Division gave judgment in Singh v The Secretary of State for the Home Department, Khalid v The Secretary of State for the Home Department [2015] EWCA Civ 74 and on 26th February PG (USA) v The Secretary of State for the Home Department [2015] EWCA Civ 118 was decided. On 23rd April 2015 the judgment in The Secretary of State for the Home Department v SS (Congo), BM (Afghanistan), BB (Pakistan), FA (Somalia), AC (Canada), KG (India) [2015] EWCA Civ 387 was handed down. All of these decisions post-date all the decisions in this case except this one.[31]In Singh (principally a decision about which rules applied) Underhill LJ summarised the position generally as follows:- “It is now settled that the right course in any case where an applicant relies on his or her private or family life is to proceed by considering first whether leave should be granted under the relevant provisions of the new Rules and only if the answer is no to go on to consider article 8 in its unvarnished form (the so-called “two-stage approach”): see the line of cases which includes Izuazu (Article 8 – new Rules) [2013] UKUT 45 (IAC) and R (Nagre) v Secretary of State for the Home Department [2013] EWHC 7200 (Admin) to which I will have to refer more fully below. Thus article 8 claims “outside the Rules” are still possible, though the scope for their operation is reduced.”[32]The second issue in Singh was whether the “two stage approach” had been properly applied. This involves reviewing what was said to be a conflict between the approach of Sales J at paragraph 30 of Nagre and paragraph 129 of MM (Lebanon) and another case called Ganesabalan v. SSHD [2014] EWHC 2712 (Admin) which it is unnecessary to cite at length. The issue related to what Sales J had called a “slight modification” and whether it imposed an “intermediary test” which might avoid an Article 8 consideration where a claim under the Rules has failed. In a nutshell, the issue was whether there is always a second stage in such cases, and whether that second stage should always be a full Article 8 proportionality assessment in line with Razgar. Underhill LJ said this about Aikens LJ’s observation about the “slight modification.” “63……..Mr Malik submitted – this being his second ground of appeal in Ms Khalid's case – that this short passage undermined the entirety of Sales J's point about a full separate consideration of article 8 not always being necessary. 64. In my view that is a mis-reading of Aikens LJ's observation. He was not questioning the substantial point made by Sales J. He was simply saying that it was unnecessary for the decision-maker, in approaching the “second stage”, to have to decide first whether it was arguable that there was a good article 8 claim outside the Rules – that being what he calls “the intermediary test” – and then, if he decided that it was arguable, to go on to assess that claim: he should simply decide whether there was a good claim outside the Rules or not. I am not sure that I would myself have read Sales J as intending to impose any such intermediary requirement, though I agree with Aikens LJ that if he was it represents an unnecessary refinement. But what matters is that there is nothing in Aikens LJ's comment which casts doubt on Sales J's basic point that there is no need to conduct a full separate examination of article 8 outside the Rules where, in the circumstances of a particular case, all the issues have been addressed in the consideration under the Rules.”[33]The decision of Sales J in Nagre therefore, as explained, received the endorsement of the Court of Appeal and represents the law. It has not been “overruled”. It had received an endorsement already in MM (Lebanon). The law is that there is always a second stage, but where all relevant considerations have been weighed under the Rules and there are no compelling circumstances not sufficiently recognised under the Rules it will be enough for the decision maker simply to say that. This does not amount to a fetter on the approach of the FTT conducting the kind of appeal which existed at the time of the decision of the FTT in this case. In this kind of case, the issue for the FTT is, or was The way in which this would be expressed in relation to the amended appeal process as from October 2014 would be somewhat different. , always the lawfulness of the refusal to vary the claimant’s leave to remain under section 6 of the 1998 Act. The duty to reach a conclusion on this issue is not circumscribed by any procedural filter, but does involve giving proper weight to the public interest as expressed by the SSHD in lawfully made rules and guidance (and now applying also sections 117A-D of the 2002 Act). The failure to qualify under the Rules will be tend to suggest that the public interest requires refusal of leave to vary, unless some countervailing factors are present which are not already taken into account under the Rules.[34]PG (USA) concerned a decision expressed in similar terms to that of the SSHD in the present case. The Article 8 claim outside the Rules was assessed by consideration of whether there were “exceptional circumstances”. The FTT allowed an appeal but UTIAC set aside that decision and restored the decision of the SSHD. UTIAC said that the case was “by no means out of the ordinary and that it appears after proper consideration of the Article 8 claim that it cannot succeed.” The Court of Appeal reversed UTIAC on grounds which are not relevant to the present issue, but then Fulford LJ at paragraph 28 said that the FTT judge had also erred:- “28 It is clear that under the versions of the Rules in force at the time of the decisions on 20 June 2012 (the application for entry clearance) and 20 March 2013 (the application for leave to remain), the Government's consistent approach was that migrant workers should not be able to bring a wide group of relatives or dependents to the UK to live for an extended period or to settle in this country. This was, potentially, an important consideration when assessing the proportionality of an interference with the appellant's Article 8 rights outside the Rules. In the instant case, the Immigration Rules do not provide a “ complete code ” and although “ the proportionality test (was) more at large” ( MM (Lebanon) and others v SSHD [135]), the Rules nonetheless help illuminate the regulatory and policy context which the judge needed to take into account, along with a range of other factors. The First Tier Tribunal judge did not analyse what, in this sense, is said to be the legitimate end the respondent was seeking to achieve. The expression by the judge at [39] of his Decision that the interference may not have been justified at all appears to indicate that he did not take account of the respondent's policy to restrict the category of relatives of migrant workers who are able to join the person who is temporarily living in the United Kingdom and to limit the circumstances in which someone in the appellant's position can qualify as a dependent. I stress that the existence of this policy was not in any sense necessarily determinative, but it should have formed part of the judge's reasoning on the issue of proportionality.”[35]The SSHD did not conduct a separate full proportionality assessment, simply holding that there were no exceptional circumstances to justify a grant outside the Rules. The FTT did conduct a proportionality assessment on appeal, and did not seek to short circuit the process relying on Nagre. That assessment was flawed because it failed to give any weight to the public interest expressed in the policy. The Court of Appeal remitted the case “in order for the Article 8 decision to be remade.” Although technically the proceedings were an appeal against the SSHD, the reasoning of her official did not feature in the three appeals which followed. The FTT judge dealt with the outcome of the decision, rather than the procedure by which it had been reached, and did not agree with the official. This is an illustration of the kind of appeal process created by the 2002 Act. In essence, in cases such as the present, it is a right to have the decision considered for the first time by a Judge.[36]In SS (Congo) the Court of Appeal re-stated the context and considered the role of public policy as expressed in the Rules in the proportionality assessment. This is at the heart of the present issue. The law is, as I have said, that the decision maker is entitled to decide that Article 8 considerations have been fully addressed in the Rules when dealing with “stage two”. If they have, it is enough to say so. This will necessarily involve deciding whether there is a “gap” between the Rules and Article 8, and then whether there are circumstances in the case under consideration which take it outside the class of cases which the Rules properly provide for. Whether these circumstances are described as “compelling” or “exceptional” is not a matter of substance. They must be relevant, weighty, and not fully provided for within the Rules. In practice they are likely to be both compelling and exceptional, but this is not a legal requirement. The first stage, therefore, is to assess how completely the Rules reflect Article 8 considerations. On this subject, Richards LJ, in a judgment to which all members of the court contributed said:- “16 This is not to say that the judgments made by the Secretary of State regarding what is required to satisfy Convention rights in an immigration context exclude a decision-making role for the courts: it is clear, not least from the leading decision in Huang , that they do not; and see MM (Lebanon) at para. [149] per Aikens LJ in the Court of Appeal. But if the balance to be struck in a particular case requires account to be taken of public interest considerations in relation to which the Secretary of State has a legitimate role, her assessment will be given the appropriate significant weight: see Huang at para. [16]. 17 If the gap between what Article 8 requires and the content of the Immigration Rules is wide, then the part for the Secretary of State's residual discretion to play in satisfying the requirements of Article 8 and section 6(1) of the HRA will be correspondingly greater. In such circumstances, the practical guidance to be derived from the content of the Rules as to relevant public policy considerations for the purposes of the balance to be struck under Article 8 is also likely to be reduced: to use the expression employed by Aikens LJ in MM (Lebanon) in the Court of Appeal, at [135], the proportionality balancing exercise “will be more at large”. If the Secretary of State has not made a conscientious effort to strike a fair balance for the purposes of Article 8 in making the Rules, a court or tribunal will naturally be disinclined to give significant weight to her view regarding the actual balance to be struck when the court or tribunal has to consider that question for itself. On the other hand, where the Secretary of State has sought to fashion the content of the Rules so as to strike what she regards as the appropriate balance under Article 8 and any gap between the Rules and what Article 8 requires is comparatively narrow, the Secretary of State's formulation of the Rules may allow the Court to be more confident that she has brought a focused assessment of considerations of the public interest to bear on the matter. That will in turn allow the Court more readily to give weight to that assessment when making its own decision pursuant to Article 8. An issue arises on this appeal as to whether the Secretary of State has made a conscientious effort to use the new Immigration Rules to strike the fair balance which Article 8 requires and whether there is a substantial gap, or not, between the content of the FTE Rules and the requirements of Article 8 .”

The decisions in this case

[37]I have reviewed the law before setting out the decisions of the FTT and UTIAC when refusing permission to appeal because the language of those decisions is not easy to follow without an understanding of its context.[38]The first decision to refuse permission to appeal was taken by FTT Judge De Haney on 11th September 2014. The grounds of appeal had argued that the Judge had followed Nagre which had been overruled by the Court of Appeal in MM (Lebanon). The Judge observed that this submission entirely misunderstood the Court of Appeal decision. As I have explained, Nagre was endorsed by the Court of Appeal and, in one respect, explained so the Judge was right in this respect. Permission was refused because although FTT Judge Doran had referred to Nagre and Gulshan, and had expressed himself as he did at paragraph 55 of his decision which I have set out above, he had actually given detailed consideration to all aspects of Article 8, including the best interests of the child. There was therefore no error of law.[39]The Judge of the Upper Tribunal refused permission on 17th December 2014, essentially because he took the same view of the effect of MM (Lebanon) as did the FTT Judge. That issue, actually, was not the basis on which the FTT Judge refused permission. The refusal by FTT Judge de Haney was based on the fact that, however he may have described the issue at the end of the decision, FTT Judge Doran had in fact carried out a full proportionality assessment before holding that there were no arguable grounds or compelling circumstances and therefore no need to conduct one. The UTIAC Judge did not mention this part of the FTT refusal of permission.

The submissions on the first issue

[40]The skeleton argument of Mr. Malik says this:- “Rule 54.7A(7) and of the CPR was introduced in the light of the judgment in R (Cart) v. Upper Tribunal [2012] 1 AC 633. Under that Rule, there are two issues. The first is whether there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First-tier Tribunal against which permission to appeal was sought are wrong in law. The second issue is whether the claim meets the second appeal test.”[41]The challenge to the FTT decision (and therefore to the UTIAC decision to refuse permission to argue these points) is on two bases i) That the FTT Judge decided that there was an intermediary requirement and that there were no compelling circumstances not sufficiently recognised by the Rules and did not, therefore, carry out a full Article 8 assessment. This was based on what is said to be the “overruled” dictum of Sales J in Nagre. ii) The Judge gave no weight to the fact that the claimant had almost satisfied the 10 year rule in paragraph 276B of the Rules. That paragraph reflects the policy of the SSHD which is that people who have lived here lawfully for a very long time should be entitled to indefinite leave to remain. That policy should have been applied as a factor weighing in favour of the claimant and it was an error of law to ignore it altogether. The proper approach to “near miss” cases is now set out in SS (Congo), cited above, at paragraphs 54-58. It is not necessary to set these paragraphs out in full. They were not available to the FTT Judge who decided the appeal, the case having been decided subsequently.[42]In my judgment, a “near miss” should not be left out of account automatically, but the facts which gave rise to it should be weighed in the balance. In many cases they will have very little weight because the aspect of the case which they concern will be fully covered by the Rules, otherwise there would be nothing against which to measure the failure to give it “near miss” status. In the present case, the Rules do fully address “long residence” as a factor on its own. Nothing less than 10 years qualifies. Long residence short of that cannot, on its own, justify leave to remain outside the Rules otherwise the court is creating its own rules with different time periods from those chosen, lawfully, by the SSHD in making her rules. It is, however, a factor which should be taken into account by the FTT among the other circumstances of the case when deciding whether the refusal to vary the leave to remain was lawful under section 6 of the 1998 Act.

Decision on first issue

[43]I have set out an extensive discussion of the current state of the law above, to show that it is quite clear that MM (Lebanon) did not “overrule” Nagre. The law is as explained in Singh, and the reason why it is so is further explained in SS (Congo). Failure under the Rules where they are either a “full code” or where the “gap” between the Rules and the Article 8 factors is small will be a strong factor in deciding a free-standing Article 8 claim outside the Rules. This is because that claim will already have been addressed to a significant extent when rejecting the claim under the Rules. Therefore, the exercise at “stage two” is to identify what factors exist which are relevant to the proportionality assessment which are not fully reflected in the Rules which are designed to cover the generality of cases. Those factors have to be given weight and if they either do not exist, or have such little weight that the consideration under the Rules has given effect to all substantial factors relevant to Article 8, then it will be enough to say so. Where there are factors which are substantial but which could play no, or no sufficient, part in the assessment under the Rules, then a full assessment will be required in which they are balanced against all other relevant considerations including the public interest in effective immigration control.[44]In this case the FTT Judge did carry out a full Article 8 assessment. He correctly directed himself as to the law relating to the best interests of the child who had not lived in the UK for more than 7 years and did not therefore qualify for consideration under the Rules. The Judge decided to assess those matters for himself as being relevant to the Article 8 assessment. He decided that the best interest of the child lay in remaining with his parents. He found that the evidence that the parents had established a strong private life in the UK was weak, and amounted to mere assertion by them. He found that the claimant should be employable in Mauritius. The Judge then considered the extent of the claimant’s ties to Mauritius. Because Appendix FM, section EX.1 did not apply in his case, the issue of his ties to Mauritius had not been considered at all under the Rules. This is why the Judge weighed it for himself. For the same reason the issue of whether there were insurmountable obstacles to their return also did not arise at Stage 1. The Judge therefore assessed these matters for himself. There was nothing “exceptional” about these factors in this case, but this did not cause the Judge to discount them as irrelevant. He decided instead that they should find it reasonably easy to re-integrate into society in Mauritius.[45]It is said that the Judge ignored the long lawful residence of the claimant who only just failed to qualify under the 10 year rule in paragraph 276B of the Rules. This is wrong. The Judge devoted paragraph 54 to this topic, and I have set it out in full above at paragraph 8. This evaluated the nature and quality of that long residence and noted that, although it was lawful, the claimant had in fact been working since 2011 and not studying, despite being here on a student visa. He had allowed that situation to continue as long as he could before making an application outside the Rules on the last day before his existing leave to remain expired. Although he said that he had informed the SSHD of the fact that he was no longer studying and that he had tried to find another college, the Judge gave these claims limited weight because they were not supported by any documents. This resulted in him giving less weight to the long residence than might otherwise have been the case. He did not say that the length of time during which the claimant had been here was irrelevant. Had that been his approach, would have been unnecessary to evaluate the nature and quality of the last part of that time as he did.[46]Paragraph 55 is the inspiration of this application for judicial review, but a proper reading of the whole decision shows that it does not accurately describe the decision making process which the FTT Judge actually conducted. The Judge sought to express his decision in conformity with the judicial headnote in Gulshan. However, it appears from the reasoning which precedes that conclusion that he did not allow himself to be deflected from the issue which he had to decide and which he did decide: was the refusal to vary leave to remain lawful under section 6 of the 1998 Act? The relevant factors in this case are addressed in detail in the Rules: there is a child; there is a partner; the claimant had been here lawfully on a student visa; he had been here for a long time, but not (at the relevant time) for 10 years. They are all citizens of a country with which the adults have continuing ties and where the claimant has prospects of employment which were assessed as reasonable. There were no insurmountable obstacles to their return as a family. These are all factors which engage Article 8 rights and which are given a value under the Rules. The gap between Article 8 and the Rules is quite small. The claimant and his wife are not entitled under the Rules to take advantage of Appendix FM EX.1 which would bring into play the assessment of whether it was reasonable to expect the child to leave to United Kingdom and whether there were insurmountable obstacles to the continuation of their family life in Mauritius. The Judge therefore weighed these factors in his assessment outside the Rules. Their appearance in the decision does not mean that he was introducing irrelevant concepts from the Rules into his free-standing Article 8 assessment. It means that he was focussing on a question which was necessary, namely the identification of any circumstances which are not fully covered by the Rules.[47]There is no doubt that paragraph 55 of the decision, which I have also set out above, could have been better phrased. It suggests that the Judge had short-circuited the Article 8 assessment when he had not done so. The Judge could properly have said that he had conducted an Article 8 assessment and found that the factors which had not been fully addressed in the decision under the Rules were not of sufficient weight to displace the public interest in the application of the Rules by the removal of applicants whose claims under the Rules had failed. That would be an accurate description of what he had done. I have examined the authorities available to the Judge above to show where the Judge’s formulation came from, and made some observations about the decision in Gulshan. Paragraph 55 suggests that where there are no arguable grounds for granting leave to remain, it is not necessary to consider whether there are any compelling circumstances not sufficiently recognised under the Rules to move on to the second stage and consider the Article 8 proportionality exercise. This is a misstatement of the law, which I have tried to state accurately above. The Tribunal cannot consider whether there are arguable grounds for granting leave to remain outside the Rules without deciding whether or not there are such “compelling circumstances”. The absence of such circumstances may abbreviate the second stage, and the way in which the decision is expressed, but does not eliminate it. In this case, the FTT Judge did not decline to weigh the circumstances of the case on the ground that they were not exceptional. He found that they did not weigh heavily enough in favour of the claimant.[48]I can see no arguable error of law in the decision which the FTT reached, as opposed to the way in which it was expressed. There is no substantial factor relevant to Article 8 which the Judge failed to weigh in the balance. As I have mentioned above, the Judge heard from both the claimant and his wife in evidence. He analysed that evidence with care in the written decision. This is very far from the kind of second stage decision which might flow from one reading of a phrase in Nagre which wasexpanded somewhat in Gulshan prior to the explanation of the proper approach in a series of decisions of the Court of Appeal. A decision reached on the application of an “arguability” filter is akin to the summary dismissal of a claim. This did not happen in this case. The grounds of appeal before the FTT and UTIAC and the grounds for this judicial review focus on the final paragraph of the decision to the exclusion of all that went before. The decision of the FTT in July 2014 was plainly correct on the facts as found.[49]The decision against which this challenge is brought is that against the decision of UTIAC to refuse permission to appeal against the decision which I have just examined in detail. The reason for refusal was based only on the rejection of the submission that Nagre had been overruled, and not the broader ground on which the FTT Judge had refused permission and on which I have explained the true nature of the decision of FTT Judge Doran.[50]Section 12 of the Tribunals, Courts and Enforcement Act 2007 sets out the jurisdiction of UTIAC:
“12 Proceedings on appeal to Upper Tribunal (1) Subsection (2) applies if the Upper Tribunal, in deciding an appeal under section 11, finds that the making of the decision concerned involved the making of an error on a point of law. (2) The Upper Tribunal– (a) may (but need not) set aside the decision of the First-tier Tribunal, and (b) if it does, must either– (i) remit the case to the First-tier Tribunal with directions for its reconsideration, or (ii) re-make the decision.” (a) may (but need not) set aside the decision of the First-tier Tribunal, and (b) if it does, must either– (i) remit the case to the First-tier Tribunal with directions for its reconsideration, or (ii) re-make the decision.”
[51]In UTIAC Guidance Note 2011 No 1, the then President stated, at [16]:
“Where there is no reasonable prospect that any error of law alleged in the grounds of appeal could have made a difference to the outcome, permission to appeal should not normally be granted in the absence of some point of public importance that is otherwise in the public interest to determine.”
[52]The Guidance Note seeks to explain that the test for the grant of permission to appeal against a decision of the FTT is very similar to that which is applied on applications to appeal to the Court of Appeal Civil Division. This is not surprising. I have observed above that the appeal from the SSHD to the FTT is really a request for judicial consideration of the case rather than an appeal in the sense seen in the Civil Procedure Rules. An appeal from the FTT to UTIAC is a familiar kind of appeal which requires an error of law to found jurisdiction and the test to be applied is the common one.[53]I consider that it is arguable that UTIAC should have found that it is arguable that the decision of the FTT Judge involved the making of an error on a point of law. UTIAC should therefore have approached the application on the basis that it was arguable that it had jurisdiction to hear an appeal. The reasoning in paragraph 55 of the decision is not justified in law. The suggestion that Nagre had been overruled may have muddied the waters somewhat and distracted attention from a careful reading of the decision as a whole, and, perhaps, from the question of whether Gulshan continued to express the proper approach to Article 8 claims outside the Rules. This meant that the UTIAC Judge should have gone on to consider whether an appeal would have any prospect of success in securing the setting aside the decision to dismiss the appeal against the SSHD’s refusal to vary the claimant’s leave to remain. For the reasons I have set out above, and which were set out by FTT Judge de Haney when he refused permission to appeal, I consider that it was not arguable that the decision of FTT Judge Doran should be set aside. The findings of the FTT Judge were entirely appropriate and are not challenged. They would no doubt be preserved and applied if the decision were to be set aside and re-made. The only change of circumstances which would exist would be the fact that by the time of any re-making of the decision the 10 year rule criterion would have been satisfied which Mr. Malik submits would entitle the claimant to succeed at that stage under the Rules. This would, however, be an adventitious event wholly unrelated to the reason why the original decision was found to be flawed by a legal error (if it was) and would not amount to a proper reason for setting it aside, if it were held to have “involved” the error of law relied upon. If UTIAC were to grant permission and then set aside an otherwise perfectly proper decision to allow this factor to prevail, it would be allowing the claimant to circumvent the Rules by mounting repeated and misconceived challenges to that decision. At the time of the claimant’s most recent application to vary his leave to remain, and the expiry of his last leave to remain, he still had over a year to go before the tenth anniversary of his arrival in the UK. There was and is no other compelling reason why an appeal should be brought, because the law is now clear and the outcome of any appeal would be specific to this case. It would turn on a careful analysis of the decision making process of the FTT. For this reason, the decision of UTIAC not to grant permission to appeal was plainly right.[54]I therefore refuse this application for permission to apply for judicial review on that ground. Because this is a rolled up hearing I can go on to say that I have given this application and its merits no less scrutiny because I have refused permission than I would have done had I granted it. On careful analysis this application for judicial review is not arguable. The result (and this judgment) would have been the same had I concluded that permission should be granted and then decided the application on its merits. Had I reached the final stage of the process, in my discretion I would not have made a quashing order in relation to the decision of UTIAC which was plainly right, although justified on grounds somewhat broader than those expressed by the UTIAC Judge.

The “second appeal” issue

[55]I have held that there is no arguable challenge to the decision on the merits of the argument advanced on the first issue, which is the only matter of substance which has been raised. It follows that I do not grant relief which would in effect amount to permission to bring a second appeal to raise such a challenge. Even if I am wrong about that, I would not grant permission to bring a second appeal.[56]Mr. Malik suggests that there are compelling reasons for the grant of permission to bring judicial review. First, he says that it is important to establish the status of Gulshan. I consider that the Court of Appeal Civil Division has done this already, in a way which means that sub-paragraph (b) of the judicial headnote in Gulshan should not be followed. I have made some further remarks on that subject which may assist. It is unnecessary to quash the decision of UTIAC in order to achieve this degree of clarification. Secondly, he says that if this case is remitted to UTIAC, the claimant will be able to raise his 10 years residence here, which is now completed, and will be entitled to indefinite leave to remain. I have dealt with this above when considering whether there was any “other compelling reason” in December 2014 which should have caused UTIAC to grant permission to appeal. I reject the submission that it is a proper reason for giving permission to bring judicial review proceedings and granting relief that it will place the claimant in a better position than he could have been in at the date of the decision which is impugned (which is, in substance, that of the FTT in July 2014).[57]I therefore refuse permission on the second issue also.[58]In view of what I have said above I have been invited to consider releasing this judgment from the normal prohibition on citation of permission judgments, given that it is a fully reasoned judgment which deals with issues of wider significance than the present case. I have referred to the matters relevant to this decision at paragraphs 53-54 and 56 above and in the circumstances I do grant the permission sought.