text stringlengths 5 5.67k |
|---|
Rather it is that, in approaching the question of whether removal is a proportionate interference with an individuals article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be exceptional) is required to outweigh the public interest in removal. Ratio |
(para 42) Cases are not, therefore, to be approached by searching for a unique or unusual feature, and in its absence rejecting the application without further examination. Ratio |
Rather, as the Master of the Rolls made clear, the test is one of proportionality. Ratio |
The reference to exceptional circumstances in the European case law means that, in cases involving precarious family life, something very compelling ... is required to outweigh the public interest, applying a proportionality test. Ratio |
The Court of Appeal went on to apply that approach to the interpretation of the Rules concerning the deportation of foreign criminals, where the same phrase appears; and their approach was approved by this court, in that context, in Hesham Ali. Ratio |
That approach is also appropriate when a court or tribunal is considering whether a refusal of leave to remain is compatible with article 8 in the context of precarious family life. Ratio |
Ultimately, it has to decide whether the refusal is proportionate in the particular case before it, balancing the strength of the public interest in the removal of the person in question against the impact on private and family life. Ratio |
In doing so, it should give appropriate weight to the Secretary of States policy, expressed in the Rules and the Instructions, that the public interest in immigration control can be outweighed, when considering an application for leave to remain brought by a person in the UK in breach of immigration laws, only where th... |
It must also consider all factors relevant to the specific case in question, including, where relevant, the matters discussed in paras 51-52 above. Ratio |
The critical issue will generally be whether, giving due weight to the strength of the public interest in the removal of the person in the case before it, the article 8 claim is sufficiently strong to outweigh it. Ratio |
In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control. Ratio |
The expression exceptional circumstances appears in a number of places in the Rules and the Instructions. Ratio |
Its use in the part of the Rules concerned with the deportation of foreign offenders was considered in Hesham Ali. Ratio |
In the present context, as has been explained, it appears in the Instructions dealing with the grant of leave to remain in the UK outside the Rules. Ratio |
Its use is challenged on the basis that the Secretary of State cannot lawfully impose a requirement that there should be exceptional circumstances, having regard to the opinion of the Appellate Committee of the House of Lords in Huang. Ratio |
As was explained in para 8 above, the case of Huang was decided at a time when the Rules had not been revised to reflect the requirements of article 8. Ratio |
Instead, the Secretary of State operated arrangements under which effect was given to article 8 outside the Rules. Ratio |
Lord Bingham, giving the opinion of the Committee, observed that the ultimate question for the appellate immigration authority was whether the refusal of leave to enter or remain, in circumstances where the life of the family could not reasonably be expected to be enjoyed elsewhere, taking full account of all considera... |
If the answer to that question was affirmative, then the refusal was unlawful. Ratio |
He added: 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. Ratio |
The suggestion that it should is based on an observation of Lord Bingham in Razgar [R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368], para 20. Ratio |
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. Ratio |
That is still his expectation. Ratio |
But he was not purporting to lay down a legal test. Ratio |
(para 20) Ratio |
It remains the position that the ultimate question is how a fair balance should be struck between the competing public and individual interests involved, applying a proportionality test. Ratio |
The Rules and Instructions in issue in the present case do not depart from that position. Ratio |
The Secretary of State has not imposed a test of exceptionality, in the sense which Lord Bingham had in mind: that is to say, a requirement that the case should exhibit some highly unusual feature, over and above the application of the test of proportionality. Ratio |
On the contrary, she has defined the word exceptional, as already explained, as meaning circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate. Ratio |
So understood, the provision in the Instructions that leave can be granted outside the Rules where exceptional circumstances apply involves the application of the test of proportionality to the circumstances of the individual case, and cannot be regarded as incompatible with article 8. Ratio |
That conclusion is fortified by the express statement in the Instructions that exceptional does not mean unusual or unique: see para 19 above. Ratio |
EU and British citizenship Ratio |
It was submitted on behalf of the appellants that it was unlawful under EU law for the Secretary of State to adopt Rules and Instructions which took as their premise that the British partner of a non-national could relocate to the non-nationals country of origin, in the absence of insurmountable obstacles or exceptiona... |
The practical result, it was submitted, was to place pressure on an EU citizen to reside outside the EU, contrary to the judgment of the Court of Justice in Ruiz Zambrano. ARG |
Although this submission was not advanced before the Court of Appeal, this court will nevertheless address it. ARG |
The appellants British partners enjoy, under article 20 TFEU, the status of Union citizen, and may therefore rely on the rights pertaining to that status, including the right to move and reside freely within the territory of the member states, subject to the limitations and restrictions laid down by the Treaty and the ... |
Article 20 precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status as Union citizens. PRE |
On the other hand, the Treaty provisions on citizenship of the Union do not confer any autonomous right on third- country nationals. PRE |
Any rights conferred on third-country nationals are derived from those enjoyed by the Union citizen. PRE |
The purpose and justification of those derived rights are based on the fact that a refusal to allow them would interfere with the Union citizens freedom of movement: Secretary of State for the Home Department v CS (Case C-304/14), judgment of 13 September 2016, paras 24-28. PRE |
In that connection, the Court of Justice has held: that there are very specific situations in which, despite the fact that the secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom of movement, a right of residence must neverthe... |
(Secretary of State for the Home Department v CS, para 29) PRE |
The Courts case law indicates the specificity of the situations in question. PRE |
The case of Ruiz Zambrano concerned the refusal of a right of residence and a work permit in a member state to the third-country parents of dependent minor children who were citizens of that state, with the inevitable consequence that the parents would have to leave the EU and the children would have to accompany their... |
The principle established in that case has been applied and developed in other cases concerned with third-country parents of minor dependent children, such as Alokpa and Moudoulou v Ministre du Travail, de lEmploi et de lImmigration (Case C- 86/12), judgment of 10 October 2013, and Secretary of State for the Home Depar... |
Those judgments can be distinguished from others in which the same relationship of complete dependence between the EU citizen and the third-country national was not present. PRE |
The case of Dereci v Bundesministerium fr Inneres (Case C-256/11) [2011] ECR I-11315, concerned the refusal of a residence permit to a third-country national who had entered Austria unlawfully, married an Austrian citizen, and had three minor children who were Austrian citizens. PRE |
His challenge to the refusal of the residence permit on the basis of Ruiz Zambrano was rejected by the Grand Chamber. PRE |
It derived from Ruiz Zambrano that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of EU citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the member state of which he is a national but also th... |
That criterion was not satisfied on the facts of Dereci, since the refusal of the residence permit to the third-country national would not necessitate the rest of the family leaving the EU: the children and their mother could remain in Austria without him. PRE |
The Grand Chamber stated: Consequently, the mere fact that it might appear desirable to a national of a member state, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a member state to be able to reside with him ... |
(para 68) As the court made clear, that finding was distinct from the consideration of the case under article 8 of the ECHR or, if applicable, the corresponding provision (article 7) of the Charter of Fundamental Rights. PRE |
That approach was also applied in Iida v Stadt Ulm (Case C-40/11), judgment of 8 November 2012, and Ymeraga v Ministre du Travail, de lEmploi et de lImmigration (Case C-87/12), judgment of 8 May 2013. PRE |
The first of these cases concerned, like Dereci, a third-country national who had married an EU citizen and had a minor child who was likewise an EU citizen. PRE |
The second case was concerned with family reunification: it was brought by a naturalised citizen of Luxembourg whose complaint was that his Kosovan parents and brothers were unable to join him there. PRE |
In both cases, arguments based on article 20 TFEU were rejected. PRE |
In the light of these cases, this ground of challenge to the Rules and Instructions cannot be upheld. Ratio |
In the event that a situation were to arise in which the refusal of a third-country nationals application for leave to remain in the UK would force his or her British partner to leave the EU, in breach of article 20 TFEU, such a situation could be addressed under the Rules as one where there were insurmountable obstacl... |
Typically, however, as in the present cases, the British citizen would not be forced to leave the EU, any more than in the case of Dereci, and the third-country national would not, therefore, derive any rights from article 20. Ratio |
Counsel also referred to the right of a British citizen, under section 1(1) of the 1971 Act, to live in ... the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person. Rati... |
This does not advance the argument. Ratio |
The entitlement conferred by section 1(1) is an important right, but it does not entitle a British citizen to insist that his or her non-national partner should also be entitled to live in the UK, when that partner may lawfully be refused leave to enter or remain. Ratio |
The Secretary of States decisions on the facts Ratio |
Having concluded that the Rules and Instructions applied in these cases were consistent with the proper application of article 8, and having rejected the ground of challenge based on EU law, it remains to consider whether the Secretary of States decisions on the facts were otherwise lawful. Ratio |
Considering first whether the decision in the case of Ms Agyarko was compatible with article 8, the court has to bear in mind that this was a case of precarious family life, and that therefore, having regard to the Strasbourg case law, a very strong or compelling claim was required to outweigh the public interest in im... |
The court has also to give due weight to the Secretary of States policy, expressed in the Rules and the Instructions, that the public interest in immigration control can be outweighed, when considering an application for leave to remain under the partner route brought by a person in the UK in breach of immigration laws... |
There was no evidence placed before the Secretary of State on which a conclusion that there were insurmountable obstacles to relocation in Ghana could reasonably have been reached. Ratio |
There was nothing to suggest that there were exceptional circumstances as defined in the Instructions, that is to say, circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate. Ratio |
Considering all relevant factors, Ms Agyarkos claim could not be regarded as very strong or compelling. Ratio |
Nor was there anything to indicate that Ms Agyarko might come within the scope of Chikwamba. Ratio |
Counsel pointed out that some parts of Ms Agyarkos notice of decision were in similar terms to Ms Ikugas, with only factual details differing from one to the other. Ratio |
The use of standard forms of words was criticised as formulaic, and as being inconsistent with anxious scrutiny. Ratio |
It was also pointed out that the decision in relation to the issue of exceptional circumstances contained no reference to any specific aspects of Ms Agyarkos application. Ratio |
It is true that the decision was briefly expressed and, in relation to the issue of exceptional circumstances, did not discuss the matters raised in the application. Ratio |
The notice of decision nevertheless addressed the relevant issues in Ms Agyarkos case, demonstrated that the most important points put forward on her behalf (her length of residence in the UK, her weakened family ties to Ghana, her relationship with her husband, his British citizenship, his full-time employment in the ... |
The use of standardised reasons is characteristic of modern decision-making practices in fields of public administration where large numbers of applications can be processed more efficiently by employing information technology, using decision templates, drop-down menus and other software. Ratio |
It is also often designed to facilitate internal auditing and management processes. Ratio |
The potential implications of this development for the law relating to the giving of reasons have not been considered in these appeals; nor has the manner in which the decision notices in question were produced. Ratio |
For present purposes, it is sufficient to say that the use of standard phrases is not in itself legally objectionable, provided the reasons given continue to explain adequately why the decision has been taken. Ratio |
Ms Ikugas application under the partner route was refused on the ground that she had provided no evidence to show that she had been living at the same address as Mr Ijiekhuamhen. Ratio |
It is accepted that that decision was erroneous: Ms Ikuga had in fact provided evidence that she and Mr Ijiekhuamhen lived at the same address. Ratio |
It follows that the Secretary of State has not yet considered Ms Ikugas case on a correct understanding of all the material facts. Ratio |
In those circumstances, it would usually follow that the Secretary of States decision should be quashed, and the application re-considered. Ratio |
The courts jurisdiction to quash being discretionary, however, it is open to it to decline to quash if satisfied that the decision, if re-taken, would inevitably be the same. Ratio |
It was on that basis that the Upper Tribunal and the Court of Appeal declined to grant permission to apply for judicial review. Ratio |
In relation to this matter, this court has no basis for interfering with the decision of the specialist judge of the Upper Tribunal, affirmed by the Court of Appeal. Ratio |
So far as the application under the Rules was concerned, the judge correctly identified that Ms Ikuga would have to satisfy the insurmountable obstacles test in paragraph EX.1(b), and explained convincingly why she could not do so on the basis of the information which she had placed before the Secretary of State: see t... |
Nothing in the discussion of that test in this judgment places in question his conclusion, with which the Court of Appeal agreed, that the test could not possibly be met on the basis put forward on Ms Ikugas behalf: in summary, that her partner was in full-time employment in the UK, and she was undergoing fertility tre... |
So far as leave to remain was sought outside the Rules, there is similarly nothing in this judgment which undermines his conclusion, with which the Court of Appeal agreed, that Ms Ikuga had not put forward anything which might constitute exceptional circumstances as defined in the Instructions, that is to say, unjustif... |
Conclusion RPC |
For these reasons, I would dismiss the appeals. RPC |
The appellant Ms Vida Poshteh arrived in this country in 2003 as a refugee from Iran, where she had been subject to imprisonment and torture. FAC |
She gained indefinite leave to remain in 2009. FAC |
She lives with her son born in 2007. FAC |
In October 2009 she applied to the respondent council for accommodation as a homeless person. FAC |
Since then she has been housed in temporary accommodation provided by the council, which has been continued pending this appeal. FAC |
The appeal arises from her refusal in November 2012 of a final offer of permanent accommodation at 52a Norland Road, London W11. FAC |
Her grounds in short were that it had features which reminded her of her prison in Iran, and which would exacerbate the post-traumatic stress disorder, anxiety attacks and other conditions from which she suffered. ARG |
Following a review, these grounds were held insufficient to justify her refusal. RLC |
The councils decision was upheld on appeal by the County Court (HH Judge Baucher), and by the Court of Appeal (Moore-Bick and McCombe LJJ, Elias LJ dissenting). RLC |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.