Immigration Rules should not be bent to favour right to family life

13 September 2011 by Rosalind English

R(on the application of Sayed) v Secretary of State for the Home Department; R(on the application of Patel) v Secretary of State for the Home Department [2011] EWCA Civ 1059 – read judgment

The Court of Appeal has confirmed that Article 8 of the Convention need not necessarily be considered when deciding whether to grant an applicant indefinite leave to remain. The Immigration Rules the are the sole test of eligibility, and Article 8 cannot be used to modify them.  They should therefore be read according to their natural and ordinary meaning.

In these conjoined appeals the appellants challenged decisions upholding the secretary of state’s refusal to grant them indefinite leave to remain in the United Kingdom.  The first appellant, S, had sought indefinite leave to remain in the UK on the basis of long residence. The secretary of state refused his application on the basis that he had failed to show that he had completed 10 years continuous lawful residence in the UK because there had been two gaps in his residency. He was, however, granted leave to remain in the UK for a period of three years to complete a course of study. The second appellant, P, had sought indefinite leave to remain in the UK as the parent of a person, his son, present and settled in the UK under the Immigration Rules para.319. P’s application was refused on the basis that he did not meet the dependency requirements of para.317 of the Rules. In both appeals an issue arose as to whether the Rules should be construed so as to conform with Article 8.

Held: Both appeals dismissed outright. S’s appeal failed comprehensively on the facts; he was granted leave to remain for three years, and there had been no arguable infringement of his Article 8 rights:

If a decision had been under consideration which affected his Article 8 rights, the Secretary of State would have had to have regard to those rights, but that would not have required a construction of the rules which was not their natural and ordinary meaning. If a decision under the rules produced a result which is not Article 8 compliant, some discretionary action outside the rules would be needed to avoid that result.[37]

P’s appeal was incompetent as it attempted to resurrect as a substantial ground of appeal that the First-Tier Tribunal had misconstrued para.317 of the Rules but P had in fact been refused permission to appeal to the Upper Tribunal on that ground and he had never renewed the application for permission to the Upper Tribunal; even if he had, having regard to the Tribunals, Courts and Enforcement Act 2007 s.13(8)(c), there was no appeal to the Court of Appeal against a putative refusal of such permission. The appeal should never have been brought on the basis on which it was brought, and his counsel’s contention that, under the 2007 Act the partial grant of permission opens up for consideration other grounds of appeal for which permission was refused was”hopeless”. [22]

The case of  Secretary of State for the Home Department v Pankina (2010) EWCA Civ 719 did not decide that the Rules were to be construed so as to be compliant with Article 8, namely that that their wording was to be modulated so as to be compliant. They were to be construed and applied according to their natural and ordinary meaning.  In applying the Rules, the secretary of state had to respect Convention rights whether or not the rules explicitly introduced them, and in the exercise of her powers, the secretary of state had to have regard and give effect to applicants’ Convention rights.  The correct appreciation of the effect of Pankina was apparent in R (on the application of Nough) v Secretary of State for the Home Department (2010) EWHC 2218 (Admin).

From the outset, the Court of Appeal has some sharp comments to make about the manner in which these appeals had been brought – both examples came forward on “incomplete relevant information or with incomplete attention to information which was available”, introducing  points into the argument which had not featured below “without proper regard for any necessary structure which the proceedings before this court should require.” Of more concern however was the invitation at the centre of both cases to the court to apply similarly wobbly reasoning to Article 8 and the Immigration Rules: counsel for S said that he was not asking the court to “rewrite” these rules, but that the court should

 “read them down” for short gaps in continuous lawful residence. Although this expression is sometimes used, it often (and, we think, here) avoids the necessary question of defining what the read down construction should be.

The inchoate nature of this ‘reading down’ notion has led to a proliferation of Convention points which have no basis in law. This, combined with the elastic language of Article 8, makes it virtually inevitable that claimants will be advised to take these points as a backstop or safety net, without regard to the proper structural relationship between the Human Rights Act and the rule or statute in question.   It also has the consequence of bringing under the protective umbrella of Article 8 a whole range of tenuous networks that cannot conceivably constitute “family” life as envisaged by the drafters of the Convention.  Similar logic has engendered a wealth of inappropriate HR challenges to and groundless appeals against the government’s immigration controls which ultimately run aground but only after the expenditure of a great deal of time and public money, arguably better expended on education and social care for those who are in this country legally. A plea to contain the uncertainty and confusion created by this trend was made by Laws LJ in MB (Somalia)

“In this country, successive administrations over the years have endeavoured, in Immigration Rules and administrative directions revised and updated from time to time, to identify those to whom, on grounds such as kinship and family relationship and dependence, leave to enter or remain should be granted. Such rules, to be administratively workable, require that a line be drawn somewhere.”

By stipulating that the Rules must be taken to mean what they appear to mean, rather than the latest understanding of Article 8, the Court of Appeal has sought to draw such a line.

Matthew Barnes of 1 Crown Office Row represented the secretary of state in this case.

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