Korobtsova, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 970 (Admin)

Case No CO/12119/2013[2015] EWHC 970 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday 30 January 2015
Strand
London WC2A 2LL
B e f o r e:
KARON MONAGHAN QC
(Sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF KOROBTSOVAClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Ms Julian Norman (instructed by Direct Access) appeared for ClaimantMr Russell Fortt (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]DEPUTY JUDGE: This is a claim for judicial review of a decision dated 29 May 2013, refusing a reconsideration of a decision made on 4 April 2013 which, in turn, refused the claimant's application for leave to remain as a spouse.[2]The background to that application can be shortly stated. The claimant, a Ukrainian national, had been in a relationship with a British citizen, Mr Mumford, for some years and married him on 26 November 2011. At that point the claimant had been in the United Kingdom, as is undisputed, unlawfully for a significant period of time (some years as I understand it). In April 2012 the claimant applied for leave to remain as Mr Mumford's spouse. In that application, through her solicitor, she set out the background to the application. She stated, amongst other things, that she had close family ties in the United Kingdom, that her husband Mr Mumford was a British citizen and that there were compelling and compassionate circumstances for the grant of leave. She also alluded to the fact that she may be at risk from her former husband if she returned to the Ukraine. No further details were given in relation to that.[3]The claimant’s application essentially turned on Article 8. She indicated in terms in her application letter that she sought leave to remain outside of the Immigration Rules on the basis of Article 8. A number of documents were enclosed with that application, some seeking to establish that the marriage was genuine - and there is no dispute that it is indeed a genuine marriage - and others seeking to demonstrate the links Mr Mumford had with the United Kingdom, in particular as pertaining to his business (invoices, tax documents and the like). The only statement, as it might be described, from Mr Mumford was in the form of an e.mail to his MP, Mr David Lamming. In that e.mail he stated that - "Unfortunately it seems that the UKBA are taking the stance that the relationship is not genuine which is having a massive impact on our lives when our only desire is to be open and honest. The UKBA have basically stated that they cannot see any reason why both of us cannot leave the UK and that I can relocate to Ukraine. This would drastically impact my life and it is not possible for me to relocate to Ukraine for various reasons." A medical report was also enclosed indicating some difficulty in achieving a pregnancy.[4]As to the result of that application, a decision was promulgated dated 4 April 2013 in which it was stated that the claimant's application was refused. The letter enclosing the notice of the decision stated that, in addition to being considered under the Immigration Rules, the claimant's case had been considered on an exceptional basis outside the Immigration Rules but that there was insufficient evidence to show that the circumstances were exceptional and accordingly the Secretary of State was not prepared to exercise her discretion in favour of the claimant.[5]As to representations concerning not wishing to return under Article 3 - which I take to be a reference to the potential violence from the claimant's ex-husband - the letter stated that any request for international protection ought to be made separately by way of an asylum application.[6]The notice of the decision provided further information. The reasons in that notice stated that in refusing the claimant's application, “consideration had been given to [the claimant’s] family life under Article 8 which, from 9 July 2012, falls under Appendix FM of the rules” (to which I will return). The requirements of the “exceptions” were set out in the letter. The reasons stated that whilst the claimant provided evidence of her marriage to Mr Mumford, she had not demonstrated any “insurmountable obstacles” to family life with Mr Mumford continuing outside the United Kingdom. In those circumstances the Secretary of State was not satisfied that the claimant met the requirements of the Rules. The letter went on to state that consideration had been given to her claim under Article 8, noting during the course of the reasons that she did not have leave to remain at the time of her application. The claimant’s application for leave to remain was, therefore, refused. The reasons given were in a very short form. The principal, if only, reason given was the indication that there was no insurmountable obstacle to continuing family life outside the United Kingdom.[7]Whilst Article 8 is referred to, apart from the reference to the absence of leave to remain at the date of the application (and a reference to paragraph 276ADE of the Rules), no further particulars as to the reasons for refusal were given.[8]As just referred to, in the period between the date of the claimant’s application and the refusal decision amendments were made to the Immigration Rules (as of 9 July 2012). On the face of it, these were material to the claimant's application. However, in the circumstances of this case, the effect of those changes appear to be academic. Both counsel, though wavering somewhat on the part of the claimant, seemed to accept ultimately that there was likely to be no material difference in practice to the outcome of an application such as the claimant's whether made before the amendments to the Rules or after in view of case law that has followed, which I shall come back to, assuming that that case law is properly applied.[9]Continuing with the chronology, on 22 April 2013 the applicant made an application for a reconsideration of the decision dated 4 April 2013. In that application for a reconsideration she set out some of the background difficulties and stated through her solicitors that it was unreasonable for her husband to relocate to Ukraine and that there were indeed insurmountable obstacles that would prevent them continuing family life outside the United Kingdom. The claimant accepted that she did not satisfy the current Immigration Rules in relation to Appendix FM but nevertheless relied on Article 8 to assert an entitlement to leave to remain. She also referred to Article 3, noting that Article 3 may tilt the balance in favour of an applicant in relation to an Article 8 claim. There is no explicit reference to domestic violence in that letter. However, it must be understood from the reference to Article 3 that this was a reference to the earlier indication that the claimant had concerns about the risk of domestic violence from her previous spouse were she to return.[10]The Secretary of State dealt with that application for a reconsideration in a letter dated 29 May 2013 which is the subject of challenge in these proceedings. There was no substantive reconsideration of the matters that the claimant had relied upon, in particular as to the significance of Article 8. The Secretary of State stated in that letter that the UKBA was not legally obliged to reconsider decisions and therefore a reconsideration would not be undertaken. It made reference to how matters could be proceeded with thereafter. However, as indicated, there was no substantive re-engagement with the matters the claimant had referred to in her application and in her letter applying for a reconsideration.[11]This claim was issued on 29 August 2013. Two grounds were originally relied upon: first, in relation to Article 8, that there was an illegality. The claimant avers under this ground that when considering an application for leave to remain as a spouse the defendant should first have considered the new rules and then thereafter Article 8 case law. It was accepted in the grounds, as it had been earlier, that the claimant did not meet the requirements of the Rules (Appendix FM). However, the claimant complains by ground 1 that the Secretary of State failed to undertake any or any proper Article 8 assessment. The claimant originally relied on a second ground concerning the failure to make an immigration decision, presumably on the basis that that deprived her of a right of appeal. She no longer pursues that ground so I am only concerned with ground 1.[12]A further issue arises in addition to ground 1 by reason of the way that the defendant had put her case, namely whether these proceedings are in time. It is fair to say that little was made of this in oral submissions but I will deal with it briefly in one moment.[13]Summary grounds were submitted by the defendant on 19 February 2014 resisting the claimant's claim. At paragraph 13 of those summary grounds reference is made to the possibility of the claimant's life being in danger were she to return to Ukraine. This was plainly reference to the claimant's concerns about domestic violence.[14]The summary grounds stated that if the claimant was concerned about that she ought to make a fresh application for asylum and humanitarian protection. That appears to be a specific, explicit reference to the concerns about domestic violence. That is explained at least in part by the fact that in the meantime the claimant had submitted a supplementary statement concerning her fears relating to her ex-husband. That statement was dated on 4 September 2013, that is before the grounds had been submitted. In that statement she stated that her ex-husband had been violent towards her and her son, that he is a violent alcoholic and that she was afraid of what might happen if she was to return with her new husband. She believed, she stated, that her ex-husband would seek her out and attack her and perhaps her new husband and that he would regard her remarriage as a personal affront.[15]The claimant was granted permission to proceed with her claim by Ms Helen Mountfield QC (sitting as a Deputy High Court Judge) by an order dated 24th February 2014. In the course of her observations, Ms Mountfield noted that the issue of domestic violence in the Ukraine was not before the defendant and any such issue may, as the defendant had observed, form the basis for a future asylum claim. I take that, therefore, to be a reference to a freestanding Article 3 claim. She did not however limit the scope of the grounds otherwise.[16]Detailed grounds of defence were submitted on 27 March 2014. With those grounds the Secretary of State exhibited a letter dated 25 March 2014 which, it is stated, was supplemental and should be read in conjunction with the original decision of 4 April 2013. That letter referred to the possibility of an Article 3 claim, noting that the claimant had stated that she feared her ex-husband and that he would seek her out and attack her, but advised that she should make the claim as one for international protection under Article 3 and as one for asylum protection. The letter went on as to the circumstances in which the defendant might consider an application based on “exceptional circumstances.” It stated that “exceptional” meant circumstances in which refusal would result in “unjustifiably harsh consequences” such that “refusal of the application would not be proportionate”. It further stated that whether the particular circumstances of the claimant constituted “exceptional circumstances which, consistent with the right to respect for private and family life 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”, had been considered.[17]Having set out very shortly some of the material facts - including the fact that the claimant's husband had resided at the same property for 52 years, the fact that he had an established business and family connections - the letter recorded the decision of the defendant that a grant of leave outside the Rules was not appropriate. This, it was said, was because Mr Mumford could reasonably be expected to establish a business abroad with the support of his wife; that the relationships with other family members did not exceed the normal emotional ties between adults; and the possibility of electronic communication and the like would be a means by which relationships could be continued. The letter also observed that the claimant’s husband was aware or should have been aware that his wife had no permission to remain in the UK when he considered forming a marital relationship with her. The letter concluded that the decision to refuse the claimant leave to remain had been “reviewed” and that the defendant was satisfied that it was correct and that the original decision was maintained. This was because the defendant was not satisfied that that the exercise of discretion was warranted in the claimant’s case and that for reasons given any interference with the claimant’s private and family life would be proportionate within the permissible aims of Article 8(2) and pursuant to the maintenance of immigration control.[18]The reasons were brief and rested, almost exclusively, on the fact that the claimant's husband could reasonably be expected to relocate. No reference was made to the allegations of domestic violence.[19]The claimant alleges in essence that there was an inadequate engagement with Article 8 and a failure to undertake a proper assessment having regard to the defendant's obligations under Article 8. First, as to the Rules, these changed after the date on which the claimant's application was made but before it was determined. Something about the changes made and their significance was said in Gulshan v Secretary of State for the Home Department [2013] UKUT 00640. At paragraph 9 of the judgment in that case it was noted that there were major changes in the Immigration Rules covering applications from those seeking to enter or remain on the basis of their family life with a person who is a British citizen or settled in the United Kingdom. Those rules are explained. The Rules include provision headed "EX: Exception" which applies in cases where an applicant has a genuine and subsisting relationship with a partner who is in the UK and is (as is material) a British Citizen and there are insurmountable obstacles to family life with that partner continuing outside the United Kingdom. As to the meaning of "insurmountable obstacles", that being a matter that was central to the original decision in the claimant’s case, the Upper Tribunal in Gulshan observed that:
““Insurmountable obstacles” are dealt with in paragraph 3.2.7c of the Guidance [Immigration Directorate Instructions: Partners and ECHR Article 8 guidance]. This states that 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 United Kingdom, 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. It is said to be 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”
. The decision-maker is advised to 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 here. As to cultural barriers, the guidance explains that these might be relevant in situations where the partner would be so disadvantaged that they could not be expected to 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.””(paragraph 13)[20]The same guidance covers “exceptional circumstances” referenced in the letter covering the notice of decision dated 4th April 2013 and the defendant’s letter of 25th March 2014, applicable where the applicant does not meet the requirements of the Rules under Appendix FM in which case leave might be granted outside the Rules. It is set out at paragraphs 15 onwards in Gulshan:
“The Guidance continues that exceptional does not mean unusual or unique. While all cases are to some extent unique, those unique factors do not generally render them exceptional. A case is not exceptional just because the criteria set out in EX.1 of Appendix FM have been missed by a small margin. Rather, the Guidance reads, 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.”
The paragraph continues that 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”.[21]Further elaboration of the Rules and their impact is given in Nagre v Secretary of State for the Home Department [2013] EWHC 720, a judgment of Mr Justice Sales. Mr Justice Sales dealt with the issue at paragraph 28 onwards as follows:
"28 ..... the new rules contemplate that there will be some cases in which a right to remain based on Article 8 can be established, even though falling outside the new rules. Therefore, the basic framework of analysis contemplated by Lord Bingham in Huang continues to apply, as was recognised by the Upper Tribunal in Izuazu."
[22]Mr Justice Sales went on that he agreed with the guidance given in Izuazu, which he set out at paragraph 30 as follows:
"30 ..... '40 ..... 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 ..... '"
[23]Mr Justice Sales then said: "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." (paragraph 43).[24]The learned judge observed, however, that he did 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.” (paragraph 49).[25]Turning again to the meaning of “insurmountable obstacles”, this is material to the question whether or not the decision based upon the absence of “insurmountable obstacles” as recorded by the Secretary of State in her original decision in the claimant’s case, satisfies the requirement to give consideration under Article 8. According to the Upper Tribunal in Gulshan, the term "insurmountable obstacles" does not refer only to obstacles which are impossible to surmount. They concern the practical possibilities of relocation.[26]As the Upper Tribunal in Gulshan observed:
"24 ..... (c) ..... In the absence of such insurmountable obstacles, if removal is to be disproportionate it is necessary to show other non-standard and particular features demonstrating that removal will be unjustifiably harsh."
[27]As I have indicated, it is understood and asserted by the Secretary of State that the new Rules meet the obligations under Article 8. Compliance with them is sufficient to satisfy the State's obligations under Article 8 because they allow for an Article 8 assessment. Certainly, the case law to which I have been taken indicates that there is scope within or without the Rules permitting an Article 8 assessment to take place. The defendant's case is that they did so to the extent necessary in the claimant’s case and there is no inadequacy in the decision-making and no violation of the law in so far as an Article 8 assessment is required.[28]The difficulty is, and as I conclude, that so far as the decision letter and the reconsideration letter dated 4th April 2013 and 29th May 2013, respectively, are concerned, it is difficult to see that there was any material engagement with Article 8 at all. It is true, as I have observed during the course of this hearing, that there was limited evidence provided by the claimant in support of her application, in particular as it pertained to her husband Mr Mumford. The letter of application did refer to the fact that - and this is not disputed as I understand it - Mr Mumford (a British citizen) had spent the whole of his life - and he was 52 at the time of the application - in Britain. It is unsurprising therefore that he has well-established ties not just in relation to his business but friends and family, but little evidence was given in relation to these matters. It appears, and as was submitted by Miss Norman, that the claimant had believed - or perhaps her solicitors - that the central issue would be whether the marriage was genuine. No dispute about that exists now if it did at all.[29]However, notwithstanding the limited evidence provided, it does seem to me bearing in mind the facts as I have just outlined them that there were bound to be issues engaging Article 8 that were not addressed by the “insurmountable obstacles” question posed by the defendant. Inevitably, as a man who was brought up in Britain, his language would be English. The Secretary of State was considering a decision in respect of the claimant which, if refused, could result in the claimant's husband having to commence life in middle-age in a country which is significantly culturally different from the United Kingdom and with a national language which is not English. The claimant had also raised the issue of the risk to her of violence from her ex-partner.[30]The first decision letter essentially turned on the question whether or not there were “insurmountable obstacles” to the claimant's return. Very little was said by way of this and it is certainly not clear from the letter that the Secretary of State understood the test that was required by the “insurmountable obstacles” threshold as expounded in Gulshan, that is that it is not necessary to show that there is a complete impossibility but merely practical possibility. There is no engagement with that question at all. Nor is there any engagement with the matters that would go to the proportionality of any decision, including but not limited to the practicality issues and to the risk of violence which though a proper basis for an asylum application could nevertheless have been relevant to the balancing exercise required under Article 8. It seems to me that the paucity of reasons suggests that the decision maker fell into that trap identified by Mr Justice Sales, and applied a pre-Huang (as it was put by the Deputy granting permission) “exceptionality” assessment.[31]As to the supplementary reasons provided in the review letter served with the detailed grounds of defence, these simply seem to assume that the claimant's husband could relocate without giving anything by way of detailed considerations to the practical difficulties that would arise and any weighing of the matters that point to any disproportionality in relation to a decision to that effect (though they had the claimant’s statement of 4th September 2013 by then).[32]As I have had pointed out to me, the observations made by Lord Justice Sedley in AB (Jamaica) v Secretary of State for the Home Department [2007] EWCA Civ 1302 are apt in this context. Lord Justice Sedley observed that - "19 In adapting this reasoning to a case like the present, the tribunal will be considering not returning someone to his or her country of origin but forcing someone lawfully settled here to choose between losing his family or migrating with them to a country which may not be not his own. [The Rules], it must be recalled, embraces a wide spectrum of status in the word 'settled': it includes both British citizens living in the UK and nationals of other countries who have indefinite leave to enter or remain here. There can be a world of difference, depending on the particular case, between expecting a foreign national, albeit now settled here, to return with his family to his country of origin or move to another country, and expecting a British citizen who has lived here all his life and has an inalienable right of abode here to live and work and find accommodation in a foreign country or forfeit his marriage."[33]This is precisely the circumstance that the claimant and Mr Mumford find themselves in. They are forced either to separate or have Mr Mumford (a man now in his middle years), who has spent the whole of his life in the United Kingdom and, even on the briefest of evidence provided to the Secretary of State plainly has a very settled existence here, as would be unsurprising with a man of his history.

Lord Justice Sedley went on:

" ..... It cannot be permissible to give less than detailed and anxious consideration to the situation of a British citizen who has lived here all his life before it is held reasonable and proportionate to expect him to emigrate to a foreign country in order to keep his marriage intact. One finds no consideration given to any of these matters by the AIT [as it was] at either stage."
The same observations can be made here. There were only the briefest observations, principally concerning the question whether there were insurmountable obstacles to return and little elaboration on that in the further reasons given, save that it was possible for the claimant and Mr Mumford to relocate, but without any weighing of the impact on Mr Mumford whose Article 8 rights were plainly engaged.[35]I am inclined to agree with the observations made by Ms Mountfield in granting permission, although I would go further than she did since she was only concerned with whether the claim was arguable, that the Secretary of State did set the threshold, so far as an Article 8 consideration is concerned, too high by her approach to the matters that were before her. There was an arguable case that the relevant Rules did not fully address the matters required to be considered under Article 8 in the claimant’s case, and so proper consideration of Article 8 was required. The decision and refusal of a reconsideration did not evidence a discharge of that duty and the review conducted after the claim was issued did not remedy those failures.[36]As to the domestic violence issues, this is more difficult since it does seem to me that there was only brief reference to it in the claimant’s application for leave and then only the vaguest allusion to it in the application for a reconsideration. Nevertheless, this is a matter that gives rise to concern and had a proper Article 8 assessment taken place, one would have expected to see some reference to it as forming part of the balancing exercise along with all other matters of relevance (including, but not limited to, the claimant’s irregular immigration status at the time of her marriage). It appears that no weight was given to that issue in the review as part of an Article 8 assessment though as I have indicated it would have been relevant to the balancing exercise under Article 8.[37]In view of my decision so far, I have decided to grant the application for judicial review and quash the decision. No doubt those matters can form part of any reconsideration.[38]I should say by way of completeness, as I observed at the outset, an issue in relation to time limits had been flagged up in the detailed grounds of defence. This was touched upon only very lightly indeed in oral submissions. The first decision was made more than three months before this claim was issued but (it appears) within three months (just) of the decision on the reconsideration and, of course, the further review undertaken by the defendant in consequence of the claim fell after the date on which the claim was issued. Permission having been granted notwithstanding the chronology, to the extent necessary I grant an extension of time. The ultimate decision, following a review that the Secretary of State had by then apparently assumed was necessary having not conducted one earlier, did not occur until after the claim was issued. There is no suggestion of prejudice or disadvantage arising from the delay and, as I have indicated, the time limit issue has barely featured in argument.[39]Are there any consequential matters?[40]MR FORTT: We ask for permission to appeal on the basis that the decision is arguably wrong to this extent. The effect of your decision is that where the question of insurmountable obstacle and/or exceptional circumstances - in terms of harshness of return - is concerned, it means that the Secretary of State is expected to engage with those issues even[41]though no evidence, beyond a mere assertion that there are reasons why it would be harsh to return, extends to representations.[42]To come back to a point your Ladyship made - I know it is not adopted - that in essence, if that position is right, one of the consequences would be that in every case where someone marries an Englishman the Secretary of State is bound to engage in some sort of analysis of the harshness of return without any evidence being put in before her as to what the particular obstacles are in the particular case rather than just a general point that if someone has been here a long time that in itself is sufficient to give rise to the sort of consideration alluded to. I pray in aid the authorities that I put forward where the opposite view, in effect, was taken where there was not evidence. I mentioned that in my skeleton argument.[43]DEPUTY JUDGE: Sorry?[44]MR FORTT: The opposite view was taken. There was not evidence; that was a particularly strong factor in that analysis. It refers to the fact there was no evidence put in. There is clearly no type of - - adopt a more, perhaps a less robust approach in respect of the Secretary of State because there is very little the Secretary of State can bite on. In effect, the position may simply be that people will not have to bring any evidence about the impracticalities. They can say I am a British person I have been here a long time. The policy is fairly broad. Ruling on Permission to Appeal[45]DEPUTY JUDGE: Permission to appeal is refused.[46]The distinction here is that some evidence was submitted in support of the application. It was not as full as it might have been. It was focused principally on the genuineness issue but there was sufficient evidence to engage an Article 8 consideration: having regard to matters such as Mr Munford’s age; his status as a British citizen (apparently always settled here); his business and other ties and the domestic violence issue. So whilst there was not as much evidence as there may be alluded to now there was some evidence, and adequate evidence, to engage proper Article 8 assessment in my judgment.[47]MISS NORMAN: I am grateful. We would seek an order for costs.[48]MR FORTT: I cannot resist an order for costs if there is a schedule which has been put before the court.[49]MISS NORMAN: There is a schedule.[50]MR FORTT: No issue with that.[51]DEPUTY JUDGE: Costs awarded in the sum contained within the statement of costs. The total is £1450 plus VAT.[52]MISS NORMAN: I am grateful.[53]DEPUTY JUDGE: Are there any other matters to which I need to attend? Thank you both for your assistance. I am grateful.