All your resources at your fingertips.Learn More
In refusing the Claimant leave to remain, the Defendant had properly assessed his rights to a private and family life under Article 8 ECHR, and had applied the correct assessment in finding that there were no insurmountable obstacles in him and his wife relocating to Pakistan.
14 February 2014
(1) The Claimant, a Pakistani national, sought judicial review of the Defendant's refusal of his application for leave to remain. The Claimant arrived in the UK on 5 November 2005 as a spouse of a person settled in the UK. He was granted leave to remain until 24 October 2007, and then again, later, until October 2009. No new application for leave was made until June 2012. That application was refused on 13 November 2012 on the basis that a right to remain would only be considered in favour of a person who (a) had a limited leave to enter or remain at the time of the application; (b) had not remained in the UK in breach of the Immigration Rules; and (c) had a certificate in English speaking and listening from an English language test provider. The Defendant also explained that she had considered the Claimant's family life under Article 8 ECHR.
(2) The Claimant's two grounds of challenge were:
(a) the Defendant failed to adequately address Article 8 ECHR outside of the Immigration Rules;
(b) in assessing whether there were insurmountable obstacles preventing the Claimant's wife from relocating to Pakistan, the Defendant failed to properly consider Article 8 considerations.
(3) HELD: Referring to the case of R (On the Application of Onkar Singh Nagre) v SSHD  EWHC 720 (Admin) the Court emphasised that no one fact is determinative, and an overall assessment of the facts is always needed. The weaker the family life relationship, the weaker the right to remain.
(4) Officials applying the exceptional circumstances policy were advised to ensure that they avoided a ‘tick box mentality'. The Court rejected the argument that the Defendant failed to consider Article 8 ECHR outside the immigration rules.
(5) The Court held that the Defendant had taken into account all of the relevant factors concerning this Claimant. The fact that the Claimant initially had a lawful right to remain might be relevant, but was not a factor that had decisive weight. The onus was on the Claimant to know what the rules were and ensure that he worked within them. The existence and nature of the Claimant's family life had been considered by the Defendant and balanced against other factors. The Defendant had not mischaracterised the relationship of the Claimant with his family.
(6) The Court could find no error in law in the application of the test of whether there were insurmountable obstacles preventing the Claimant and his wife from relocating to Pakistan. The assessment that had been undertaken had been balanced and proportionate. It considered that for most of her life, the Claimant's wife had lived outside the UK, they had no children in the UK and there was no evidence that their desire to live in the UK was anything but a preference.
(7) The application was thus held to fail.
 - Overall assessment.
 - Rejected failed consider Article 8 ECHR.
 - Considered factors.
 - Onus on Claimant.
 - Balancing of factors.
 - No mischaracterisation.
 - Correct test.
 - Balanced assessment.
 - Conclusion.
To read the full case summary and to view the case transcript, you must subscribe to Jordans Public Law Online (if you already subscribe click here to log in).
To request a free trial click here and select Jordans Public Law online from the drop down menu