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03 MAY 2013

R (on the application of Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin); (2013) PLLR 047

Immigration - Leave to Remain - Immigration - Article 8

Immigration:leave to remain
Leave to remain

The Immigration Rules relating to family members and leave to remain were held not to be contrary to Article 8 ECHR. The decision that there was no insurmountable obstacle to the Claimant and his partner relocating to India was one which had been lawfully made.

28 March 2013

Administrative Court

Sales J

(1)        The Claimant brought this challenge against the lawfulness of additions to the Immigration Rules promulgated by the Defendant on 13 June 2012. These changes related to claims based on family life, as now set out in the Immigration Rules Sections E-LTRP (Eligibility for limited leave to remain as a partner) and EX.1 (Exception) of Appendix FM (Family Members).

(2)        The Claimant alleged that Section EX.1 was not compliant with Article 8 of the European Convention on Human Rights (ECHR). The Court later granted permission for there to be an additional challenge on the basis that Rule 276ADE of the Immigration rules, as relating to the Claimant's private life, was unlawful due to incompatibility with Article 8 ECHR. The Claimant also sought to challenge the decision to refuse him leave to remain in the UK.

(3)        The Claimant contended that the new rules were unlawful, and the resultant decision was therefore also unlawful. In the alternative, it was submitted that even if the new rule were lawful, the decision taken was unlawful.

(4)        The Claimant was an Indian national who arrived in the UK in August 2006. He became an over-stayer after the expiry of his visitor entry clearance in January 2007. In 2008 he met a British citizen who he started living with in May 2009. In late 2011 the Claimant submitted an application for leave to remain, based on Article 8 ECHR, as an unmarried partner of a person present and settled in the UK.

(5)        The decision letter refusing the Claimant's application determined that the Claimant did not satisfy the criteria in Section EX.1, primarily because there were no insurmountable obstacles preventing the couple from re-locating to India. In the decision letter, there was no indication of whether there had been consideration of any exceptional circumstances in relation to the Claimant's case.

(6)        A revised decision was issued on 18 March 2013. The decision letter reached the same conclusion and provided more expansive reasons for this decision. This letter did address the question of exceptional circumstances, but nonetheless reached the same conclusion.

(7)        HELD: The Court did not think there was any problem in the new rules not providing for every possible application of Article 8 in relation to individual cases. It would not be feasible or possible to produce Immigration Rules that fulfilled such criteria. This could not be said to render the Immigration Rules unlawful. 

(8)        The Court held that the combination of the new rules and the Secretary of State's residual discretion to grant leave to remain fully covers an individual's rights under Article 8 ECHR. There is no legal requirement that the rules themselves require leave to remain to be granted in every case where Article 8 gives rise to a claim for an individual to be allowed leave to remain. The Court thus concluded that the Claimant's challenge to the new rules failed.

(9)        The Court emphasised the Strasbourg case-law, which made clear that only in very exceptional circumstances would the removal of a non-national family member constitute a violation of Article 8. It was particularly relevant that the Claimant had established his relationship when his status in the UK was known to be precarious and the couple did not have any children.

(10)     Once the case-law had been considered, the Court determined that there was only a small gap between the test for leave to remain under EX.1 and the result arrived at by direct consideration of Article 8.

(11)     The Court reminded the Defendant's decision-makers not to simply adopt a tick-box approach, but to also step back and make an overall assessment to determine whether there is an arguable case of disproportionality if leave is not granted. The Claimant failed to provide evidence showing that there was an ‘insurmountable obstacle' to the couple relocating to India. No other reasons were put forward to explain why removal might nevertheless be disproportionate. In light of this, the initial decision was held to be lawful.

(12)     Further, the second decision letter explained the reasons for the decision, including that express consideration had been made of whether the case qualified as exceptional. The correct test was said to have been applied, and the challenge to the lawfulness of the decision was dismissed.

(13)     The Court thus held that the challenge to the lawfulness of the amended rules was dismissed, as was the challenge to the decision in the Claimant's particular case.

Claim dismissed

Key paragraphs

[27] - Every individual case.

[35] - Rules & Discretion.

[36] - Challenge to rules failed.

[39] - Strasbourg case law.

[41] - Disproportionate in exceptional cases. 

[43] - Small gap.

[49] - Not tick-box approach.

[50] - Evidence relocate.

[50] - Lawful decision.

[51] - Correct test.

[53] - Conclusion.

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