Court of Appeal gives further guidance on Article 8 in immigration cases – Millie Polimac

immigrationSingh and Khalid v SSHD [2015] EWCA Civ 74 – read judgment

These two appeals concern the assessment of article 8 ECHR claims in immigration cases. It is an important addition to the current cases on which rules apply to applications for leave to enter or remain made before the new Immigration Rules came into force on 9 July 2012. In Singh and Khalid, the Court of Appeal clarified the answer to this question and resolved the conflicting Court of Appeal authority in Edgehill v SSHD [2014] EWCA Civ 402 and Haleemudeen v SSHD [2014] EWCA Civ 558. 

The new Immigration Rules 

The role of article 8 in immigration cases has caused controversy over the years.

The government has therefore decided to set out how the balancing exercise should be carried out by introducing HC194. Two main additions were made through the new Rules. The first was that paragraph 276ADE was added to the existing Part 7. This provision increased the long-term residence requirement from 14 to 20 years. The second was that Appendix FM was added to Part 8 of the Rules. It dealt with circumstances in which family members would be granted leave to enter or remain.

HC194 came into force on 9 July 2012. GEN 1.1. of Appendix FM states that the intention behind the new rules was to codify the Strasbourg case-law on article 8 in this area.

The facts in Singh and Khalid

Mr Singh arrived in the UK in 1997, at the age of 22. He applied for asylum but his application was refused and he was served with a formal notice of liability for removal. In 2006 he applied for indefinite leave to remain under the old rules on the basis that he had accrued 10 years’ continuous residence in the UK. He also applied under article 8 ECHR. His application was dealt with some six years later, on 25 October 2012. In the intervening period, Mr Singh’s personal circumstances changed, as did the Immigration Rules. When UKBA considered his application they did so under the new rules and held that he did not meet the 20-year residence requirement.

Ms Khalid (then aged 17) came to the UK with her mother in June 2007 on a 6-month visitor’s visa. Ms Khalid overstayed and married a British national in October 2009. On 16 January 2012 she applied for leave to remain on the basis of her marriage. Her case was grounded solely on article 8. In May 2012 her application was refused and she applied for judicial review. Those proceedings were compromised as the Secretary of State said that she would make a fresh decision.   On 19 April 2013 a new decision was made but her application was still refused. UKBA referred to the new rules, namely Appendix FM and Article 276ADE, and held that Ms Khalid did not satisfy their requirements. Ms Khalid applied for judicial review again.

Which rules apply to applications made before 9 July 2012?

In Edgehill the Court of Appeal held that the old rules had to apply to Ms Edgehill’s application, which was made on the ground of length of residence before the new rules took effect.   This was because the transitional provisions in HC194 expressly stated that if an application was made before 9 July 2012 and had not been decided on the entry into force of HC194, it was to be decided in accordance with the old rules.

A couple of weeks after Edgehill the Court of Appeal handed down its judgment in Haleemudeen. Mr Haleemudeen applied on the basis of length of residence under the old rules. The Secretary of State dealt with his application on 1 October 2012, applying the old rules. The Court of Appeal held that the FTT had made an error of law in dealing with his application under those rules: the general rule was that any change to the Immigration Rules applied to applications pending at the date of entry into force of those rules (see the House of Lords’ judgment in Odelola [2009] UKHL 25).

Decision of the Court

Lord Justice Underhill gave the leading judgment in Singh and Khalid, with which and both Lord Justice Lewison and Lady Justice Arden agreed, although Arden LJ expressed a reservation on one point which is considered further below. 

Underhill LJ was of the view that Edgehill and Haleemudeen were indeed in conflict, and that if he had to make a choice between them he would follow Edgehill. The reason for this was twofold: First, he found Jackson LJ’s reasoning in Edgehill persuasive in that the language of HC194 was clear as to the Secretary of State’s intentions. Second, the decision in Haleemudeen was per incuriam because the Court in that case had not been referred to the transitional provisions contained in HC194 or to the decision in Edgehill.

However, Underhill LJ considered that the outcome of Singh and Khalid did not depend on resolving the conflict between the two decisions because in neither case had the court been referred to a further change that had been made by HC565, in force since 6 September 2012.

HC565 inserted paragraphs A277A to A277C into Part 8. So far as is relevant for present purposes, the Explanatory Memorandum stated that the aim was to clarify some drafting aspects of Appendix FM and paragraph 276ADE, as well as to make additional transitional provisions as to the operation of Parts 7 and 8. The Secretary of State also explained in her submissions to the Court in Singh and Khalid that the changes in question were intended to fill gaps identified in discussions with case workers since the introduction of the changes made by HC194.

Underhill LJ relied on paragraph A277C to reach his conclusion:

Subject to paragraphs A277 and A280 and paragraph GEN.1.9. of Appendix FM of these rules, where the Secretary of State is considering any application to which the provisions of Appendix FM (family life) and paragraphs 276ADE to 276DH (private life) of these rules do not already apply, she will do so in line with these provisions.

 

The judge considered that the new rules did not already apply to applications made prior to the changes because of HC194. He therefore concluded that, under the changes made by HC565, article 8 assessments should be considered in line with the new rules set out in Appendix FM and paragraph 276ADE, even when the application was made prior to the new rules coming into force.

Comment

It appears from HC565, and particularly paragraph 277C, that the Secretary of State was seeking to reverse the effect of the transitional provisions in HC194. The Court accepted that this was her aim.

Yet on the other hand, HC760 further amended paragraph 277C with effect from 13 December 2012, and it stated that the Secretary of State could apply the new rules when Appendix FM did not already apply where she “deem[ed] it appropriate”. This appeared to bestow upon her an element of discretion, but the Court played down its importance. It considered that the Secretary of State did not need to provide any explanation as to which rules she was going to apply.

The Court also left open the possibility that a different set of rules could apply in different circumstances. Arden LJ was of the view that the reasoning of Jackson LJ in Edgehill did not mean that the Secretary of State could never rely on the new rules in determining an application made before 9 July 2012. She urged circumspection about the parts of the old Immigration Rules which had not been expressly considered. 

She also sought to restrict Edgehill to ‘length of residence’ applications. In her view, it was arguable that the new rules would apply to applications made prior to 9 July 2012 if the case concerned the application of a dynamic and evolving concept such as “the public interest”.

Underhill LJ did not agree with this last point; in his view, this was an approach expressly rejected by the court in Edgehill. However, he thought that an argument remained to be had in relation to which rules applied where the application was rejected on under the suitability provisions. The new rules state at paragraph A279 that:

The requirements of sections ‘S-EC: Suitability – entry clearance” and “S-LTR: Suitability – leave to remain” of Appendix FM shall apply to all applications made under Part 8 and paragraphs 276A-276D and paragraphs 398-399A shall apply to all immigration decisions made further to applications under part 8 and paragraphs 276A-276D where a decision is made on or after 9 July 2012, irrespective of the date the application is made.

As far as Underhill J was concerned, that paragraph should not trump the transitional provisions

because the message that [the transitional provision] gives the reader is that if his or her application pre-dates 9 July 2012 it is unnecessary to read any further

Although these comments were obiter, it is not clear why this should be the outcome when suitability is concerned, whereas the opposite outcome would pertain under paragraph A277C.

Singh and Khalid has helped to resolve the conflict between Edgehill and Haleemudeen, and to clarify the further amendments made to the new rules. However, questions as to the effect of the transitional provisions in HC194 will continue to vex the courts in the future. 

Millie Polimac is a barrister at Five Paper Buildings.

 

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