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Thirdly, MTH suggests that, given the other obligations with regard to design, manufacture, testing, delivery, installation and completion expressly included, or impliedly incorporated, in clause 8.1 of the Contract, it is unlikely that an additional further and onerous obligation was intended to have been included in ... |
The trouble with that argument is that it involves saying that para 3.2.2.2(ii) adds nothing to other provisions of the TR or the contract. Ratio |
I accept that redundancy is not normally a powerful reason for declining to give a contractual provision its natural meaning especially in a diffuse and multi-authored contract (see In re Lehman Bros International (Europe) (in administration) (No 4) [2017] 2 WLR 1497, para 67). Ratio |
However, it is very different, and much more difficult, to argue that a contractual provision should not be given its natural meaning, and should instead be given no meaning or a meaning which renders it redundant. Ratio |
Fourthly, MTH argues that, if the parties had intended a warranty or term such as is contended for by E.ON, it would not have been tucked away in para 3.2.2.2 of the TR, but would, for instance, have been a Key Functional Requirement in Section 1.6 of the TR. Ratio |
Section 1.6 is concerned with general provisions about the two proposed wind farms, and there is no reference in it to any specific component, in particular the foundations. Ratio |
In any event, as mentioned in para 4 above, the Key Functional Requirements include a requirement for a minimum site specific design life of twenty (20) years without major retrofits or refurbishments, and there is no definition of that expression. Ratio |
Jackson LJ said below, in para 91, If a structure has a design life of 20 years, that does not mean that inevitably it will function for 20 years, although it probably will. Ratio |
Assuming (without deciding) that that is correct, it seems to me that there is a powerful case for saying that, given a Key Functional Requirement is that there is a minimum 20-year design life, it is scarcely surprising that a provision dealing with the General Design Conditions at the Detailed Design Stage includes a... |
Fifthly, MTH contends that the TR are concerned in a number of places (eg paras 1.6, 3.2.6 and 3b.5.6) with emphasising that the design life of the Works or various components of the Works should be 20 years, which does not carry with it a warranty that the Works, or foundations, will last for 20 years or that they wil... |
The points I have already made at the end of para 49 and the end of para 50 above appear to me to answer this contention. Ratio |
Sixthly, MTH points out that para 3.2.2.2(ii) was concerned with planned maintenance and should not be given the sort of broad effect which E.ONs case involves. Ratio |
It appears to me that the reference to planned maintenance at the end of the first sentence of para 3.2.2.2(ii) emphasises that the design of the foundations should not simply be such as to last for 20 years, but should be able to do so without the need for planned maintenance. Ratio |
Conclusion RPC |
In these circumstances, I would allow E.ON’s appeal and restore the order made at first instance by Edwards-Stuart J. RPC |
These appeals are concerned with applications made by foreign nationals, residing unlawfully in the UK, for leave to remain here as the partners of British citizens with whom they have formed relationships during the period of their unlawful residence. FAC |
The appellants rely primarily on the duty imposed on the Secretary of State by the Human Rights Act 1998 to act compatibly with the right to respect for family life guaranteed by article 8 of the ECHR. FAC |
In each case, the Secretary of State concluded that the appellant did not qualify for leave to remain under the applicable provisions of Appendix FM to the Immigration Rules (the Rules), and that, applying the Immigration Directorate Instructions, Family Members Under the Immigration Rules, Section FM 1.0, Partner & EC... |
The appeals focus primarily on (1) paragraph EX.1(b) of Appendix FM, which imposes on applicants for leave to remain as a partner, where the applicant is in the UK in breach of immigration laws, a requirement that there are insurmountable obstacles to family life with that partner continuing outside the UK; and (2) a r... |
They also raise an issue under EU law, relating to the effect of the judgment of the Court of Justice in Ruiz Zambrano v Office national de lemploi (Case C-34/09) [2012] QB 265, as well as some other issues under domestic law. FAC |
Rules and Instructions STA |
It may be helpful to begin by explaining the nature and status of the Rules and the Instructions. STA |
Decision-making in relation to immigration, as in relation to other areas of government, is not exhaustively regulated by legislation. STA |
It involves the exercise of discretion and the making of evaluative judgments. STA |
In such a situation, it is usual, and legitimate, for the Secretary of State to adopt administrative policies in order to guide decision-making, and to issue instructions to officials. STA |
Unusually, in the context of immigration Parliament has enacted legislation under which it exercises oversight of these aspects of administrative decision-making. STA |
Section 3(2) of the Immigration Act 1971 requires the Secretary of State to lay before Parliament statements of the rules, or any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by... |
The Rules are subject to Parliamentary approval, and are published as House of Commons papers. STA |
Their legal significance was reflected, at the time of the proceedings with which these appeals are concerned, in the fact that an appeal could be brought against an immigration decision on the ground that it was not in accordance with the Rules: Nationality, Immigration and Asylum Act 2002, section 84(1)(a). STA |
Section 86(3) of the 2002 Act also included the Rules in the law to which the tribunal must have regard when determining an appeal. STA |
The Secretary of State also has a discretionary power under the 1971 Act to grant leave to enter or remain in the UK even where leave would not be given under the Rules: R (Munir) v Secretary of State for the Home Department [2012] UKSC 32; [2012] 1 WLR 2192, para 44. STA |
The manner in which that discretion is exercised may be the subject of a policy, which may be expressed in guidance to the Secretary of States officials. STA |
The discretion may also be converted into an obligation where the duty of the Secretary of State to act compatibility with Convention rights is applicable. STA |
Giving effect to Convention rights STA |
In the exercise of her functions under the 1971 Act, including the making of rules and the giving of instructions, the Secretary of State has always been under a duty to comply with requirements imposed by the common law: notably, to act consistently with the intentions of Parliament, and to exercise her powers in acco... |
The Human Rights Act additionally imposed on the Secretary of State a statutory duty not to act incompatibly with Convention rights, including the right guaranteed by article 8. STA |
The same duty is also imposed on tribunals and courts considering an appeal against the decision of the Secretary of State, but their role does not absolve the Secretary of State of her own duty to act compatibly with Convention rights. STA |
Unlike the ECHR itself, which imposes a duty under international law on the United Kingdom as a contracting party, and is therefore not concerned with failures to comply with Convention rights by one organ of the state which are fully corrected by another, the Act imposes a duty on every public authority, subject to sp... |
The fact that an act of a public authority may be subject to review by the courts, and therefore does not in itself inevitably result in a breach of the Convention, does not mean that the act cannot be incompatible with Convention rights. STA |
Such a reading of the Act would deprive it of most of its content, since virtually all acts of public authorities are susceptible to appeal or review before the courts. STA |
It would therefore be inconsistent with the intention of Parliament. STA |
How the Secretary of State ensures that her acts in the exercise of her functions under the 1971 Act are compatible with Convention rights is, in principle, a matter for her. STA |
The Secretary of States initial response to the entry into force of the material provisions of the Human Rights Act in October 2000 was to insert into the Rules a direction to officials to carry out their duties in compliance with the provisions of that Act (rule 2). STA |
As the Home Office noted in 2012, however, there was no change to the family life part of the Rules to reflect any consideration of proportionality under article 8, and there has been no attempt since to align the rules with developing article 8 case law (Statement of Intent: Family Migration, Home Office, June 2012). ... |
The Rules frequently offered no more than broad guidance as to how discretion was to be exercised in different typical situations. STA |
In that situation, it was primarily through the exercise of her residual discretion to deal with cases outside the Rules that the Secretary of State sought to comply with article 8. STA |
That is no longer true. STA |
Over time, increasing emphasis has been placed on certainty rather than discretion, on predictability rather than flexibility, on detail rather than broad guidance, and on ease and economy of administration. STA |
The increased numbers of applications, the increasing complexity of the system, and the increasing use of modern technology for its administration, have necessitated increasingly detailed Rules and instructions. STA |
In some areas, the apparent aim is for the decision-making process to involve as little discretion or judgment as can be achieved consistently with the duty to respect Convention rights. STA |
The present context appears to be an example, as explained below. STA |
The position was different at the time when the House of Lords decided the leading case of Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167. STA |
At that time, the Rules did not reflect an assessment of the proportionality of decision-making in relation to article 8. STA |
In that context, Lord Bingham of Cornhill said at para 6 that the rule under which the appellant failed to qualify for leave to remain was unobjectionable, but that her failure to qualify under the Rules was the point at which to begin, not end, consideration of her claim under article 8. STA |
The Rules with which this appeal is concerned form part of the Secretary of States response to Huang. STA |
They were included in the Statement of Changes in Immigration Rules published in June 2012 (HC 194), and laid before Parliament pursuant to section 3(2) of the 1971 Act. STA |
The new rules set out in that Statement were the subject of debates in both Houses of Parliament, as well as being examined by the Secondary Legislation Scrutiny Committee of the House of Lords. STA |
They came into force on 9 July 2012. STA |
Their rationale was explained in the Home Office documents which accompanied the Statement of Changes, comprising the Statement of Intent: Family Migration, and the Statement by the Home Office, Grounds of Compatibility with Article 8 of the European Convention on Human Rights. STA |
The Statement of Intent announced that the changes to the Rules would comprehensively reform the approach taken towards ECHR article 8 in immigration cases (para 10). STA |
They would achieve this by themselves reflecting an assessment of all the factors relevant to the application of article 8: The new rules will reflect fully the factors which can weigh for or against an article 8 claim. STA |
They will set proportionate requirements that reflect, as a matter of public policy, the Governments and Parliaments view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the... |
This will mean that failure to meet the requirements of the rules will normally mean failure to establish an article 8 claim to enter or remain in the UK, and no grant of leave on that basis. STA |
(para 7) In consequence, if an applicant failed to meet the requirements of the new Rules, it should only be in genuinely exceptional circumstances that refusing them leave and removing them from the UK would breach article 8 (para 11). STA |
One particular respect in which the new rules were to reflect an article 8 assessment concerned family life established when the parties knew one or both of them lacked a valid basis of stay in the UK. STA |
The fact that family life established in those circumstances carries less weight under Strasbourg case law ... is reflected in the new Immigration Rules (para 32). STA |
The Statement of Intent also explained that the new rules were intended to result in a change of approach on the part of the courts. STA |
In the past, it was said, the lack of a clear public policy framework had effectively left the courts to develop public policy (para 30). STA |
They could not give due weight to the Governments and Parliaments view, because they did not know what it was (para 37). STA |
The new Rules were intended to fill this public policy vacuum by setting out the Secretary of States position on proportionality and to meet the democratic deficit by seeking Parliaments agreement to her policy (para 38). STA |
The Statement on Grounds of Compatibility with Article 8 of the European Convention on Human Rights was intended to address issues arising under article 8 in relation to the new rules. STA |
It explained that the current rules did not provide a comprehensive framework for considering family life, and that currently family life applications are first considered under the Rules and, if the application does not meet the requirements of the Rules, the decision-maker then considers whether the decision is compa... |
It acknowledged that this two-stage approach had one advantageous consequence: A policy of keeping proportionality decisions outside of the Rules can be helpful in forming the basis of an argument that the Rules can never be incompatible with the ECHR. STA |
(para 16) The Statement also noted, however, the serious disadvantages which had flowed from that approach. STA |
The approach adopted in Huang, in requiring the compatibility of individual decisions with article 8 to be considered on a case-by-case basis, rather than assessing the compatibility of the Rules themselves with article 8, has led to unpredictability and inconsistency which are anathema to good administration (para 11)... |
The conclusion drawn was that it would be better if proportionality were determined according to provisions in the Rules (para 18). STA |
The thinking behind the new rules, therefore, was that if the Rules are proportionate, a decision taken in accordance with the Rules will, other than in exceptional cases, be compatible with A8 (para 20). STA |
As a result, the role of the courts should shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the Rules (para 22). STA |
Appendix FM STA |
Appendix FM, Family Members, begins with a general statement which explains that it sets out the requirements to be met by those seeking to enter or remain in the UK on the basis of their family life with a person who is a British citizen, is settled in the UK, or is in the UK with limited leave as a refugee or person ... |
It is said to reflect how, under article 8, the balance will be struck between the right to respect for private and family life and the legitimate aims listed in article 8(2). STA |
The Appendix nevertheless contemplates that the Rules will not cover all the circumstances in which a person may have a valid claim to enter or remain in the UK as a result of his or her article 8 rights. STA |
Paragraphs GEN.1.10 and GEN.1.11 both make provision for situations where an applicant does not meet the requirements of this Appendix as a partner or parent but the decision-maker grants entry clearance or leave to enter or remain outside the Rules on article 8 grounds. STA |
Section R-LTRP sets out the requirements for limited leave to remain as a partner. STA |
Certain requirements apply in all cases: for example, that the applicant meets suitability requirements relating to such matters as his or her criminal record. STA |
Other requirements depend on the applicants circumstances. STA |
In particular, under paragraph R-LTRP.1.1(d), the applicant must not be in the UK on temporary admission or temporary release, or in breach of immigration laws (disregarding an overstay of 28 days or less), unless paragraph EX.1 applies. STA |
That paragraph applies if either of two conditions is satisfied. STA |
The first applies to persons applying for leave to remain as parents, and is not relevant to the present appeals. STA |
The second applies to persons, such as the appellants, who apply for leave to remain as partners: (b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountab... |
At the time when the present cases were considered, the Rules did not define the expression insurmountable obstacles. STA |
A definition was however introduced with effect from 28 July 2014, when paragraph EX.2 was inserted into Appendix FM by the Statement of Changes in Immigration Rules (HC 532, 2014): For the purposes of paragraph EX.1(b) insurmountable obstacles means the very significant difficulties which would be faced by the applica... |
Paragraph EX.2 applies only to applications decided on or after 28 July 2014. STA |
The Instructions STA |
The Instructions, in the version effective from 9 July 2012 which was in force when these cases were before the Secretary of State and the courts below, state that failure to meet the requirements of the Rules will normally mean failure to establish an article 8 claim (para 1.1). STA |
There is a statement, in relation to applications for leave to enter or remain as a partner on the basis of family life, that if the applicant does not meet the requirements of the Rules, the application should be refused (para 3). STA |
That statement is, however, implicitly qualified by later provisions. STA |
In relation to the eligibility requirements relating to immigration status, the Instructions state that, for leave to remain, the applicant must not have overstayed by more than 28 days, unless paragraph EX.1 applies (para 3.2.4). STA |
Provision is made for exceptional circumstances which prevented the applicant from applying within the first 28 days of overstaying. STA |
In relation to assessing whether there are insurmountable obstacles, as required by paragraph EX.1(b), the Instructions direct the decision maker to consider the seriousness of the difficulties which the applicant and his or her partner would face in continuing their family life outside the UK, and whether they entail ... |
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