text stringlengths 5 5.67k |
|---|
In the case of Ms Agyarko, Sales LJ stated that, since her family life was established in the knowledge that she had no right to be in the UK and was therefore precarious in the sense in which that term had been used in the European and domestic case law, it was only if her case was exceptional for some reason that she... |
On the facts of Ms Agyarkos case, Sales LJ considered that there were no exceptional circumstances. RLC |
The fact that Ms Agyarkos spouse was a British citizen did not make the case exceptional: several of the European cases in which applications were rejected had involved a partner or spouse who was a national of the state from which the applicant was to be removed. RLC |
So far as Chikwamba was concerned, the House of Lords had found that there would be a violation of article 8 if the applicant for leave to remain in that case were removed from the UK and forced to make an out-of-country application for leave to enter which would clearly be successful, in circumstances where the interf... |
In Sales LJs view, Ms Agyarkos case was very far from a Chikwamba type of case. RLC |
She had not asked the Secretary of State to consider whether leave to remain should be granted on the basis of Chikwamba. RLC |
This was not an argument of such obviousness that the Secretary of State had been obliged to consider it regardless of whether it was mentioned. RLC |
Accordingly, the Secretary of State could not be said to have erred in law in failing to grant leave to remain on that basis. RLC |
In any event, the materials submitted by Ms Agyarko did not demonstrate that an out-of-country application for leave to enter would succeed. RLC |
On the contrary, the information provided about her and Mr Benettes financial circumstances, for example, indicated that she had no income and that he earned less than the minimum income requirement specified in Appendix FM. RLC |
Sales LJ considered that the Secretary of States decision letter in the case of Ms Agyarko left something to be desired regarding the clarity of the reasoning, but had addressed the substance of her case under the Rules. RLC |
There was no arguable case for leave to be granted outside the Rules which required to be addressed separately. RLC |
In relation to Ms Ikugas appeal in respect of refusal of leave to remain outside the Rules on the basis of article 8, Sales LJ again considered that the Upper Tribunal judges assessment could not be faulted. RLC |
Ms Ikugas case involved precarious family life, with no children. RLC |
No compelling medical circumstances had been shown to exist. RLC |
The claim for leave to remain had not been put to the Secretary of State on the basis of Chikwamba, and in any event no materials were submitted which might show that leave to enter would have to be granted under Appendix FM if applied for. RLC |
Although the Secretary of State had not considered the issue on the correct factual basis as regards Ms Ikugas relationship with her partner, this was very far from being a case in which exceptional circumstances could be found to exist, even on a correct understanding of the facts. RLC |
Even if Ms Ikugas application were remitted to be reconsidered by the Secretary of State on the footing that Ms Ikuga and Mr Ijiekhuamhen cohabited and had a genuine subsisting relationship, there was no prospect whatever that the outcome would be a grant of leave to remain. RLC |
The present appeals Ratio |
The issues raised in the appeals can be summarised as follows: (1) What is the correct approach to the application of article 8 to the removal of a non-settled migrant? (2) How is the insurmountable obstacles requirement in paragraph EX.1(b) of Appendix FM to be interpreted, prior to the 2014 changes to the Rules? Is i... |
The correct approach to the removal of non-settled migrants PRE |
The European Court of Human Rights has considered in a number of judgments the application of article 8 to the removal of non-settled migrants (that is, those without a right of residence) who have developed a family life with a partner while residing unlawfully in the host state. PRE |
In Jeunesse v Netherlands, the Grand Chamber analysed the situation of such a person, consistently with earlier judgments of the court, as raising the question whether the authorities of the host country were under a duty, pursuant to article 8, to grant the person the necessary permission to enable her to exercise her... |
The situation was thus analysed not as one in which the host country was interfering with the persons right to respect for her private and family life, raising the question whether the interference was justified under article 8(2). PRE |
Instead, the situation was analysed as one in which the person was effectively asserting that her right to respect for her private and family life, under article 8(1), imposed on the host country an obligation to permit her to continue to reside there, and the question was whether such an obligation was indeed imposed.... |
In the light of this approach, counsel for the Secretary of State submitted that the refusal of leave to remain in the UK to persons unlawfully resident here should similarly be analysed as raising the question whether the state is under a positive obligation to permit the applicant to remain in the UK rather than whet... |
As the European court has noted, the boundary between cases best analysed in terms of positive obligations, and those best analysed in terms of negative obligations, can be difficult to draw. PRE |
As this court explained in its judgment in Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799, para 32, the mode of analysis is unlikely to be of substantial importance in the present context. PRE |
Ultimately, whether the case is considered to concern a positive or a negative obligation, the question for the European court is whether a fair balance has been struck. PRE |
As was explained in Hesham Ali at paras 47- 49, that question is determined under our domestic law by applying the structured approach to proportionality which has been followed since Huang. PRE |
Insurmountable obstacles PRE |
In Jeunesse, the Grand Chamber identified, consistently with earlier judgments of the court, a number of factors to be taken into account in assessing the proportionality under article 8 of the removal of non-settled migrants from a contracting state in which they have family members. PRE |
Relevant factors were said to include the extent to which family life would effectively be ruptured, the extent of the ties in the contracting state, whether there were insurmountable obstacles in the way of the family living in the country of origin of the non-national concerned, and whether there were factors of immi... |
It appears that the European court intends the words insurmountable obstacles to be understood in a practical and realistic sense, rather than as referring solely to obstacles which make it literally impossible for the family to live together in the country of origin of the non-national concerned. PRE |
In some cases, the court has used other expressions which make that clearer: for example, referring to un obstacle majeur (Sen v The Netherlands (2003) 36 EHRR 7, para 40), or to major impediments (Tuquabo-Tekle v The Netherlands [2006] 1 FLR 798, para 48), or to the test of insurmountable obstacles or major impediment... |
Insurmountable obstacles is, however, the expression employed by the Grand Chamber; and the courts application of it indicates that it is a stringent test. PRE |
In Jeunesse, for example, there were said to be no insurmountable obstacles to the relocation of the family to Suriname, although the children, the eldest of whom was at secondary school, were Dutch nationals who had lived there all their lives, had never visited Suriname, and would experience a degree of hardship if f... |
Domestically, the expression insurmountable obstacles appears in paragraph EX.1(b) of Appendix FM to the Rules. Ratio |
As explained in para 15 above, that paragraph applies in cases where an applicant for leave to remain under the partner route is in the UK in breach of immigration laws, and requires that there should be insurmountable obstacles to family life with that partner continuing outside the UK. Ratio |
The expression insurmountable obstacles is now defined by paragraph EX.2 as meaning very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or thei... |
That definition appears to me to be consistent with the meaning which can be derived from the Strasbourg case law. Ratio |
As explained in para 16 above, paragraph EX.2 was not introduced until after the dates of the decisions in the present cases. Ratio |
Prior to the insertion of that definition, it would nevertheless be reasonable to infer, consistently with the Secretary of States statutory duty to act compatibly with Convention rights, that the expression was intended to bear the same meaning in the Rules as in the Strasbourg case law from which it was derived. Rati... |
I would therefore interpret it as bearing the same meaning as is now set out in paragraph EX.2. Ratio |
By virtue of paragraph EX.1(b), insurmountable obstacles are treated as a requirement for the grant of leave under the Rules in cases to which that paragraph applies. Ratio |
Accordingly, interpreting the expression in the same sense as in the Strasbourg case law, leave to remain would not normally be granted in cases where an applicant for leave to remain under the partner route was in the UK in breach of immigration laws, unless the applicant or their partner would face very serious diffi... |
Even in a case where such difficulties do not exist, however, leave to remain can nevertheless be granted outside the Rules in exceptional circumstances, in accordance with the Instructions: that is to say, in circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that r... |
Is that situation compatible with article 8? Ratio |
In considering that question, it is important to appreciate that the Rules are not simply the product of a legal analysis: they are not intended to be a summary of the Strasbourg case law on article 8. Ratio |
As was explained at para 10 above, they are statements of the practice to be followed, which are approved by Parliament, and are based on the Secretary of States policy as to how individual rights under article 8 should be balanced against the competing public interests. Ratio |
They are designed to operate on the basis that decisions taken in accordance with them are compatible with article 8 in all but exceptional cases. Ratio |
The Secretary of State is in principle entitled to have a policy of the kind which underpins the Rules. Ratio |
While the European court has provided guidance as to factors which should be taken into account, it has acknowledged that the weight to be attached to the competing considerations, in striking a fair balance, falls within the margin of appreciation of the national authorities, subject to supervision at the European lev... |
The margin of appreciation of national authorities is not unlimited, but it is nevertheless real and important. Ratio |
Immigration control is an intensely political issue, on which differing views are held within the contracting states, and as between those states. Ratio |
The ECHR has therefore to be applied in a manner which is capable of accommodating different approaches, within limits. Ratio |
Under the constitutional arrangements existing within the UK, the courts can review the compatibility of decision-making in relation to immigration with the Convention rights, but the authorities responsible for determining policy in relation to immigration, within the limits of the national margin of appreciation, are... |
The Rules therefore reflect the responsible Ministers assessment, at a general level, of the relative weight of the competing factors when striking a fair balance under article 8. Ratio |
The courts can review that general assessment in the event that the decision-making process is challenged as being incompatible with Convention rights or based on an erroneous understanding of the law, but they have to bear in mind the Secretary of States constitutional responsibility for policy in this area, and the e... |
It is also the function of the courts to consider individual cases which come before them on appeal or by way of judicial review, and that will require them to consider how the balance is struck in individual cases. Ratio |
In doing so, they have to take the Secretary of States policy into account and to attach considerable weight to it at a general level, as well as considering all the factors which are relevant to the particular case. Ratio |
This was explained in Hesham Ali at paras 44-46, 50 and 53. Ratio |
The Secretary of States view that the public interest in the removal of persons who are in the UK in breach of immigration laws is, in all but exceptional circumstances, sufficiently compelling to outweigh the individuals interest in family life with a partner in the UK, unless there are insurmountable obstacles to fam... |
It is argued that the Secretary of State has treated insurmountable obstacles as a test applicable to persons in the UK in breach of immigration laws, whereas the European court treats it as a relevant factor in relation to non-settled migrants. Ratio |
That is true, but it does not mean that the Secretary of States test is incompatible with article 8. Ratio |
As has been explained, the Rules are not a summary of the European courts case law, but a statement of the Secretary of States policy. Ratio |
That policy is qualified by the scope allowed for leave to remain to be granted outside the Rules. Ratio |
If the applicant or his or her partner would face very significant difficulties in continuing their family life together outside the UK, which could not be overcome or would entail very serious hardship, then the insurmountable obstacles test will be met, and leave will be granted under the Rules. Ratio |
If that test is not met, but the refusal of the application would result in unjustifiably harsh consequences, such that refusal would not be proportionate, then leave will be granted outside the Rules on the basis that there are exceptional circumstances. Ratio |
In the absence of either insurmountable obstacles or exceptional circumstances as defined, however, it is not apparent why it should be incompatible with article 8 for leave to be refused. Ratio |
The Rules and Instructions are therefore compatible with article 8. Ratio |
That is not, of course, to say that decisions applying the Rules and Instructions in individual cases will necessarily be compatible with article 8: that is a question which, if a decision is challenged, must be determined independently by the court or tribunal in the light of the particular circumstances of each case.... |
Precariousness Ratio |
In Jeunesse, the Grand Chamber said, consistently with earlier judgments of the court, that an important consideration when assessing the proportionality under article 8 of the removal of non-settled migrants from a contracting state in which they have family members, is whether family life was created at a time when t... |
Where this is the case, the court said, it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8 (para 108). Ratio |
Domestically, officials who are determining whether there are exceptional circumstances as defined in the Instructions, and whether leave to remain should therefore be granted outside the Rules, are directed by the Instructions to consider all relevant factors, including whether the applicant [formed] their relationshi... |
They are instructed: 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. R... |
That instruction is consistent with the case law of the European court, such as its judgment in Jeunesse. Ratio |
As the instruction makes clear, precariousness is not a preliminary hurdle to be overcome. Ratio |
Rather, the fact that family life has been established by an applicant in the full knowledge that his stay in the UK was unlawful or precarious affects the weight to be attached to it in the balancing exercise. Ratio |
Whether the applicant is in the UK unlawfully, or is entitled to remain in the UK only temporarily, however, the significance of this consideration depends on what the outcome of immigration control might otherwise be. Ratio |
For example, if an applicant would otherwise be automatically deported as a foreign criminal, then the weight of the public interest in his or her removal will generally be very considerable. Ratio |
If, on the other hand, an applicant - even if residing in the UK unlawfully - was otherwise certain to be granted leave to enter, at least if an application were made from outside the UK, then there might be no public interest in his or her removal. Ratio |
The point is illustrated by the decision in Chikwamba v Secretary of State for the Home Department. Ratio |
It is also necessary to bear in mind that the cogency of the public interest in the removal of a person living in the UK unlawfully is liable to diminish - or, looking at the matter from the opposite perspective, the weight to be given to precarious family life is liable to increase - if there is a protracted delay in ... |
This point was made by Lord Bingham and Lord Brown of Eaton-under-Heywood in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] AC 1159, paras 15 and 37. Ratio |
It is also illustrated by the judgment of the European court in Jeunesse. Ratio |
Finally, in relation to this matter, the reference in the instruction to full knowledge that their stay here is unlawful or precarious is also consistent with the case law of the European court, which refers to the persons concerned being aware that the persistence of family life in the host state would be precarious f... |
One can, for example, envisage circumstances in which people might be under a reasonable misapprehension as to their ability to maintain a family life in the UK, and in which a less stringent approach might therefore be appropriate. Ratio |
Exceptional circumstances Ratio |
As explained in para 49 above, the European court has said that, in cases concerned with precarious family life, it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8. Ratio |
That reflects the weight attached to the contracting states right to control their borders, as an attribute of their sovereignty, and the limited weight which is generally attached to family life established in the full knowledge that its continuation in the contracting state is unlawful or precarious. Ratio |
The court has repeatedly acknowledged that a state is entitled, as a matter of well-established international law, and subject to its treaty obligations, to control the entry of non- nationals into its territory and their residence there (Jeunesse, para 100). Ratio |
As the court has made clear, the Convention is not intended to undermine that right by enabling non-nationals to evade immigration control by establishing a family life while present in the host state unlawfully or temporarily, and then presenting it with a fait accompli. Ratio |
On the contrary, where confronted with a fait accompli the removal of the non-national family member by the authorities would be incompatible with article 8 only in exceptional circumstances (Jeunesse, para 114). Ratio |
That statement reflects the strength of the claim which will normally be required, if the contracting states interest in immigration control is to be outweighed. Ratio |
In the Jeunesse case, for example, the Dutch authorities tolerance of the applicants unlawful presence in that country for a very prolonged period, during which she developed strong family and social ties there, led the court to conclude that the circumstances were exceptional and that a fair balance had not been struc... |
As the court put it, in view of the particular circumstances of the case, it was questionable whether general immigration considerations could be regarded as sufficient justification for refusing the applicant residence in the host state (para 121). Ratio |
The European courts use of the phrase exceptional circumstances in this context was considered by the Court of Appeal in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544. Ratio |
Lord Dyson MR, giving the judgment of the court, said: In our view, that is not to say that a test of exceptionality is being applied. Ratio |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.