This week we welcome to the Blog our new team of commentators on Scottish human rights issues – Fraser Simpson, David Scott and Thomas Raine.
Khan v. The Advocate General for Scotland,  CSIH 29 – read judgment.
A Pakistani national refused leave to remain in the UK after expiry of his visitor visa has had his successful challenge to that decision upheld by Scotland’s civil appeal court, the Inner House of the Court of Session.
The request for leave to remain was initially refused under the Immigration Rules due to a lack of “insurmountable obstacles” preventing Mr Khan from continuing his family life in Pakistan. That decision was reduced (quashed) by the Lord Ordinary – a first-instance judge in the Outer House of the Court of Session – as although the decision had been in accordance with the Immigration Rules, the decision-maker had failed to undertake a proportionality assessment of the decision as required under Article 8 ECHR (read the Outer House judgment here).
The Advocate General submitted a reclaiming motion (a request for a review of the decision) on the basis that the lack of a proportionality assessment was not a “material” error in law. Lord Eassie, delivering the opinion of the Inner House, upheld the decision that the refusal of leave to remain was not in accordance with Article 8.
The petitioner (claimant), Mr Khan, had entered the UK in 2005 on a visitor visa that expired in November 2010. He met a British national immediately prior to the expiration of his visa, married her in September 2011, and subsequently applied for leave to remain in the UK as the spouse of a UK national in November 2011. This request was eventually refused in January 2012. Mr Khan requested reconsideration of the decision but the Border Agency maintained its decision on 26 March 2013, applying the newly-updated Immigration Rules. Removal directions were issued that day.
Outer House Proceedings
The petitioner challenged the refusal of leave to remain on the basis that it was contrary to his Article 8 rights. The application of the Immigration Rules to situations involving Article 8 rights was considered in Izuazu (Article 8 –new rules),  UKUT 00045 (available here) and the relevant principles were summarised in paragraphs 41-42 of that judgment:
“41. Where the claimant does not meet the requirements of the rules it will be necessary for the judge to go on to make an assessment of Article 8 applying the criteria established by law.
42. When considering whether the immigration decision is a justified interference with the rights to family and/or private life, the provisions of the rules or other relevant statement of policy may again re-enter the debate but this time as part of the proportionality evaluation. Here the judge will be asking whether the interference was a proportionate means of achieving the legitimate aim in questions and a fair balance as to the competing interests.”
These principles – previously approved by the Inner House in MS v. Secretary of State for the Home Department,  CSIH 52 – result in the need for consideration of a “full… Article 8 challenge” if an arguable case exists that application of the Immigration Rules did not address relevant concerns in a manner consistent with Article 8 requirements. In considering the refusal of leave to remain, the Lord Ordinary noted that it was centred around the lack of “insurmountable obstacles” to the continuation of the family life in Pakistan. Again referring to Izuazu (at paragraph 53), sole reliance on this would constitute a failure to “comply with principles of the established law” resulting in a breach of Article 8. The Strasbourg jurisprudence discussed pointed towards such obstacles being a factor to be considered in the proportionality assessment, as opposed to a minimum requirement that must be satisfied before a challenge on such grounds could succeed.
The Lord Ordinary held that the Border Agency had viewed the existence of “insurmountable obstacles” as a minimum requirement. The lack of a full proportionality assessment of the decision, taking in to account all the relevant circumstances, meant the refusal fell short of the requirements under Article 8. Accordingly, the Lord Ordinary annulled the refusal of leave to remain.
Inner House Proceedings
The Advocate General – the UK Government’s senior Scottish law officer – requested a review of this decision. He accepted that the failure to undertake a proportionality assessment was an error in law, but argued that this error was not material and should not have resulted in reduction of the decision. In support of this, it was submitted that in order to rely upon the protections of Article 8, the petitioner was required to establish “exceptional circumstances”. The Advocate General relied upon the judgment of the European Court of Human Rights in Rodrigues da Silva, Hoogkamer v. The Netherlands, (2007) 44 EHRR 34 (available here). It was submitted that this judgment set out the need for “exceptional circumstances” in situations where the family life being relied upon by the petitioner was established and developed at a time when the immigration status of the individual was “precarious”. Finally, the Advocate General submitted that the application for leave to remain was bound to fail even if a proportionality assessment had been undertaken, and this should have resulted in the Lord Ordinary refusing to reduce the decision.
These submissions were rejected by the Inner House, which refused the reclaiming motion. It refused to accept the requirement for “exceptional circumstances” to be established before Article 8 could be relied upon where the immigration status of the individual had been “precarious” during the development of the relevant relationships. The passage relied upon by the Advocate General (specifically the last sentence of paragraph 39) was merely a comment of the European Court on the likely operation of the Convention provision, not a legal condition. The need for a proportionality assessment to evaluate the entire circumstances of the case under Article 8 was well established. The failure to undertake such an assessment could not be considered immaterial as there was no guarantee that the conclusion of such an assessment would result in the decision being declared proportionate. Additionally, the Inner House emphasised that even if the decision had been proportionate, the failure to consider the relevant legal questions and considerations was sufficient to result in the reduction of the decision.
The judgment of the Outer House, and the Inner House’s refusal to overturn it, emphasises the importance of the procedural safeguards within Article 8. Even in the event that decisions are taken in accordance with the Immigration Rules, there is a need to consider whether a proper proportionality test has been satisfied as required under Article 8.
The Lord Ordinary issued some interesting obiter comments regarding the potential relevance of the petitioner’s wife’s EU citizenship. In Sanade and others (British children-Zambrano-Dereci),  UKUT 00048 (IAC) the claimants faced deportation following the commission of serious criminal offences. That would have resulted in separation from their children and spouses. In considering Article 8, the Tribunal heard arguments based upon Article 20 of the Treaty on the Functioning of the EU. This prevents states from taking measures that would deprive EU citizens of the genuine enjoyment of a right conferred as a result of their EU citizenship.
The Lord Ordinary considered that such EU rights would be “an additional and weighty factor to be thrown into the balance when considering the article 8 ECHR question of proportionality”.