As a direct access immigration barrister practising in London a large number of my clients raise article 8 claims. Regular readers of this blog will read as to how often Article 8 features in appeals and how the Upper Tribunal and Court of Appeal have grappled with the issue. Readers will remember the sensible decision of MF Nigeria in both the Upper Tribunal and also the Court of Appeal and the not so helpful decision of Gulshan, indeed rarely a month went past without one Judge or another trying to help and perhaps yet further clouding the waters.
Anyway it appears that the false path of Gulshan is no more to be followed. In this regard I set out below the note prepared by my namesake, Paul Turner of the excellent Barnes Harild and Dyer Solicitors who has written a note on the case which lays to rest Gulshan.
Note on Sunnasee
- Clarifying that there is no intermediary test to consider Article 8 outside the rules and clarification on Gulshan, it is necessary to consider all the relevant factors before determining Article 8 outside the rules
- The Court reminded itself what the guidance was in Gulshan that caused the debate on whether there was an entry test, i.e., the extent to which decision makers had to carry out proper balancing exercised if the case failed to meet the public interest on Article 8 set out in the rules. The issue arose out of para 24(b) of Gulshan (Article 8 – new Rules – correct approach) UKUT 640 (IAC).
- At paragraph 24 of Gulshan, the Tribunal said this which is also set out in the judicial headnote:-
“On the current state of the authorities:
(b) after applying the requirements of the Rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them: R (on the application of) Nagre v Secretary of State for the Home Department  EWHC 720 (Admin);
(c) the term “insurmountable obstacles” in provisions such as Section EX.1 are not obstacles which are impossible to surmount: MF (Article 8 – new rules) Nigeria  UKUT 00393 (IAC);Izuazu (Article 8 – new rules)  UKUT 00045 (IAC); they concern the practical possibilities of relocation. In the absence of such insurmountable obstacles, it is necessary to show other non-standard and particular features demonstrating that removal will be unjustifiably harsh:Nagre“
- In Sunassee, Mr Justice Edis answers the point at [55-56] that
“I have held that there is no arguable challenge to the decision on the merits of the argument advanced on the first issue, which is the only matter of substance which has been raised. It follows that I do not grant relief which would in effect amount to permission to bring a second appeal to raise such a challenge. Even if I am wrong about that, I would not grant permission to bring a second appeal.
Mr. Malik suggests that there are compelling reasons for the grant of permission to bring judicial review. First, he says that it is important to establish the status ofGulshan. I consider that the Court of Appeal Civil Division has done this already, in a way which means that sub-paragraph (b) of the judicial headnote in Gulshan should not be followed. I have made some further remarks on that subject which may assist. It is unnecessary to quash the decision of UTIAC in order to achieve this degree of clarification
- Of other interest in the Judgement is the relevance of the public interest in the rule, and the concept of exceptional circumstance in the following;
- At  that
‘The failure to qualify under the Rules will be tend to suggest that the public interest requires refusal of leave to vary, unless some countervailing factors are present which are not already taken into account under the Rules’
- And at  that;
InSS (Congo) the Court of Appeal re-stated the context and considered the role of public policy as expressed in the Rules in the proportionality assessment. This is at the heart of the present issue. The law is, as I have said, that the decision maker is entitled to decide that Article 8 considerations have been fully addressed in the Rules when dealing with “stage two”. If they have, it is enough to say so. This will necessarily involve deciding whether there is a “gap” between the Rules and Article 8, and then whether there are circumstances in the case under consideration which take it outside the class of cases which the Rules properly provide for. Whether these circumstances are described as “compelling” or “exceptional” is not a matter of substance. They must be relevant, weighty, and not fully provided for within the Rules. In practice they are likely to be both compelling and exceptional, but this is not a legal requirement. The first stage, therefore, is to assess how completely the Rules reflect Article 8 considerations
- And at  that;
I have set out an extensive discussion of the current state of the law above, to show that it is quite clear thatMM (Lebanon) did not “overrule” Nagre. The law is as explained in Singh, and the reason why it is so is further explained in SS (Congo). Failure under the Rules where they are either a “full code” or where the “gap” between the Rules and the Article 8 factors is small will be a strong factor in deciding a free-standing Article 8 claim outside the Rules. This is because that claim will already have been addressed to a significant extent when rejecting the claim under the Rules. Therefore, the exercise at “stage two” is to identify what factors exist which are relevant to the proportionality assessment which is not fully reflected in the Rules which are designed to cover the generality of cases. Those factors have to be given weight and if they either do not exist, or have such little weight that the consideration under the Rules has given effect to all substantial factors relevant to Article 8, then it will be enough to say so. Where there are factors which are substantial but which could play no, or no sufficient, part in the assessment under the Rules, then a full assessment will be required in which they are balanced against all other relevant considerations including the public interest in effective immigration control.
- In sum, if the rules are not met, then the public interest is served unless a factor can be identified that was not covered under the rules. The dictum describes this as a ‘gap between the rules and Article 8. I offer some scenarios that could apply such as;
- The Chikwamba principle is not set in the rules and can be raised where you can point to all the relevant being met;
- The subjective view of the settled spouse or child is not considered under the rules. Under the rules the SSHD’s objective view is used to determine whether a qualifying child can reasonably be expected to leave the UK, or if there are insurmountable obstacles to family life being enjoyed abroad, knowingly that the SSHD cannot reasonably require a settled family member to leave the UK (as per Blake J in Sanade), so then this factor can be weighed into a proportionality exercise;
- Any factors that are raised and the SSHD fail to consider/address in the decision
- Any errors on the part of the SSHD that undermine confidence in the system of immigration control and returning to apply for entry clearance;
- Any delays in the entry clearance system and poor decision making statistics etc
- Barriers to making the application;
- No precarious relationship or overstaying;
- States failure to make a first lawful decision and the concern of a second unlawful entry clearance application;
- The costs involved to all parties where Chikwamba is engaged;
- The temporary interference with family life if EC is required;
- Or temporary interference to provision of care to settled partners parents if he is to accompany applicant;
- Implications to settles partners employment; and
- If additional factors can be identified that are not determined under the rules, then the Tribunal can be invited to determine proportionality in the normal way, and whether the circumstances are described as “compelling” or “exceptional” is not a matter of substance.
- According to Edis J, they must be only be relevant, weighty, and not fully provided for within the Rules and In practice they are likely to be both compelling and exceptional, but that is not a legal requirement, and a fully balancing exercise must be carried out.
- This discussion is at odds with the SSHD policy to require something rare. I suppose the point to make here, is that the rules are intended to address the generality of case, and we say the Court identify that anything that does not is therefore rare.
- The SSHD policy states, as mentioned in the Judgement that the SSHD’s own policy is that exceptional circumstances exist if the decisions/interference amounts to ‘unjustifiably harsh consequences’. This is the same as a normal proportionality assessment. For example, a case of mine in which the client is a visitor in the UK and did not want to return to apply for entry clearance to remain with her settled spouse, and will be required to separate for a short time to return and apply for entry clearance can amount to unjustifiably harsh consequence, as this was the Tribunal view on proportionality in the cases of Chikwamba for cases with children and Hyatt for cases without children. The point to make is that the rules permit an application to be made and the guidance/policy fails to state a clear position on this. Therefore to refuse the application and require additional expense is arguably unjustifiable where the rules entertain such applications
- The key is therefore to find a factor that has not be taking account of already with the first stage of the consideration of Article 8 within the rules and to invite the IJ to carry out a normal proportionality exercise.
- Alternatively, if there is no right of appeal to an IJ, the key is to argue that the SSHD have failed to consider relevant factors.
- It remains important to ensure that all the relevant factors are raised in the Article 8 application/fresh claim.”
I have sought to include all of the above as it is a very help exposition of an important new case and also identifies arguments that can and should be deployed in article 8 cases.
Paul Turner is a highly regarded direct access immigration barrister and is the head of Imperium Chambers, Grays Inn Buildings, Grays Inn, he also practises from Mansfield Chambers, the Chambers of Michael Mansfield QC, 5 Chancery Lane, London, WC2A 1LG and a door tenant at 39 Park Square Leeds LS1 2NU and is licensed by the Bar Council to provide advice and representation directly to the public.