Case No: C5/2013/3442
Neutral Citation Number: [2016] EWCA Civ 358
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Upper Tribunal (Immigration and Asylum Chamber)
Deputy Upper Tribunal Judge Peart

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 07/04/2016
Before :

LADY JUSTICE RAFFERTY
LORD JUSTICE UNDERHILL
and
LORD JUSTICE SIMON

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Between:

	MILAN GURUNG	Appellant	
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	THE ENTRY CLEARANCE OFFICER, NEW DELHI	Respondent	

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Mr Christian Howells (instructed by N.C. Brothers & Co Solicitors) for the Appellant 
Mr Tom Richards (instructed by Government Legal Department) for the Respondent

Hearing date: 9 December 2015

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Judgment
Lord Justice Underhill : 

THE FACTS AND THE PROCEDURAL HISTORY
1.	The Appellant is a national of Nepal, where he was born on 27 October 1987.  On 26 September 2009 his father was granted entry clearance to the U.K. for settlement on the basis of his former service as a Gurkha in the British Army, and he came to this country shortly thereafter.  The Appellant and his mother had in the meantime applied for entry clearance to settle here with him.  The Appellant was at that point aged 21.  He is his parents’ only son, though they have two daughters.  
2.	The Appellant’s mother’s application for entry clearance was accepted, on 27 April 2010, though she did not leave Nepal straightaway.  His own application was refused by a decision dated 16 June 2010.  The reasoning of the Entry Clearance Officer (“ECO”) can be summarised as follows:
(1)	He found that the Appellant did not qualify under the Immigration Rules.  Since no issue now arises about that aspect of his decision I need not set out his reasons.
(2)	He then considered the Appellant’s application under what he understood to be the applicable policy for adult dependants of members of the Armed Forces, which he understood to require that “exceptional circumstances” be shown.  Again, I need not set out his reasoning in detail.  In summary, he found that there was nothing exceptional in the Appellant’s case.  He noted that the Appellant was an adult; that he was living with his mother and his aunt in Nepal, and that even if his mother left to join his father he would still be living in the same household with a member of the family; that there was no evidence of any financial dependence on his father; and that he also had grandparents and two uncles in Nepal. 
(3)	Finally, he considered whether the Appellant might have a separate claim under article 8 of the European Convention of Human Rights.  He held that article 8 was not engaged because the Appellant’s relationship with his parents did not go beyond “the normal emotional ties”.  But he went on to say that if he was wrong about that: 
“… I consider that refusing this application is proportionate in the exercise of firm immigration control.  In particular, I note that your parents chose to apply for settlement when you and your sisters were already adults.  Even if your parents were to travel to the UK there would be no bar to them returning to Nepal either permanently or temporarily.  Family life can continue as it may have done and without interference by this decision.”
3.	The Appellant’s mother left Nepal on 28 July 2010 and has settled in the U.K. with his father.  The Appellant continued to live with his aunt in Nepal.  
4.	The Appellant appealed to the First-tier Tribunal against the refusal of entry clearance.  On 16 December 2010 IJ Elvidge allowed his appeal on the basis that the ECO had failed to apply a more favourable policy, referred to as SET12, which remained in force at the material time.  I need not set out its detailed terms.  It itemises a number of factors which an ECO should consider, and concludes:
“If one or more of the factors listed above are present, the ECO may exercise discretion and grant entry clearance for settlement in the UK.”
Judge Elvidge believed that he was entitled to exercise that discretion himself, and he did so by directing that leave to enter for settlement purposes should be granted.  Crucially, as regards the issue which we have to decide, he did not deal with the Appellant’s article 8 claim.  Presumably he thought that it was unnecessary for him to do so in view of his decision on the policy issue; but the subsequent history of the proceedings is an object lesson in the risks of that approach.       
5.	The ECO appealed to the Upper Tribunal.  By a determination promulgated on 3 November 2011 UTJ Eshun held that SET12 was indeed the applicable policy and that the ECO had accordingly approached the application on a wrong basis; but she held that Judge Elvidge had been wrong to exercise the discretion himself.  She thus allowed the appeal to the extent that the Appellant’s application was remitted to the ECO for reconsideration on the correct basis.
6.	On 12 March 2012 the ECO made a fresh decision pursuant to the order of the Upper Tribunal.  (It appears that a different individual was responsible for the decision.)  He again refused the Appellant entry clearance.  His reasoning can be summarised as follows:
(1)	He held that, even applying SET12, the Appellant was not entitled to an exercise of discretion in his favour.  I need not set out his reasoning, but I should note that it focused on his circumstances at the time of the original decision: it referred expressly to “the time of your application in 2009” and also referred to him living “in your family home with your mother and auntie” (his mother of course not having left until after the date of the first decision). 
(2)	He said that he was obliged to “re-visit” the article 8 claim.  He decided that article 8 was not engaged, but also that, even if it was, refusal of the Appellant’s application was not disproportionate.  As regards the issue of proportionality, his language is identical to that of the first decision; but as regards whether article 8 is engaged at all it is somewhat differently worded.  For reasons that will appear, it is relevant to consider the date at which he considered the article 8 claim.  Although he does not address the point explicitly, the natural reading seems to me to be that he did so on the basis of the circumstances as they were at the time of his decision, i.e. in 2012.  That might or might not be implicit in the reference to “re-visiting” the claim.  But what seems to me decisive is that he refers to the Appellant as having family life in Nepal with his aunt, grandparents and uncles, making no mention of his mother.  That can only have been deliberate, given that the Appellant’s mother had been expressly referred to when he was considering the claim under SET12; and the difference must reflect the fact that she had left for the U.K. in the meantime.  
7.	The Appellant appealed against that decision.  By a determination promulgated on 8 May 2013 FTTJ Hembrough dismissed the appeal.  I can summarise his reasons as follows:
(1)	He considered first the claim under article 8.  He observed that there was some uncertainty about whether he was considering an appeal against the first or second decision of the ECO.  He expressed the view that it was the latter, but he said that the point is in any event academic by virtue of section 85 (4) of the Immigration, Asylum and Nationality Act 2002, which allowed a tribunal to consider “evidence which concerns a matter arising after the date of the decision”; so that even if the appeal was against the first decision he could consider subsequent events.  (He was in fact wrong about that – see para. 13 (3) below.)  
(2)	Consistently with that conclusion, he considered the article 8 claim as at the date of the second decision of the ECO (subject to the wrinkle noted below).  He in fact noted that the language of the 2010 and 2012 decisions was very similar, but he nevertheless pointed out (at para. 29) that “… by 12 March 2013 [sic] time had moved on and circumstances had changed”.  The reference to 12 March 2013 was a slip: the second ECO decision was, as I have said, made on 12 March 2012.  However the Appellant does not suggest that anything turns on this mistake: as will appear, the issue is whether the Judge should have considered the position as at 2010, and the difference between 2012 and 2013 is immaterial. 
(3)	As regards the question whether article 8 is engaged in the Appellant’s case the Judge directed himself by reference to the decision of the Upper Tribunal (Lang J and UTJ Jordan) in Ghising v Secretary of State for the Home Department [2012] UKUT 00160 (IAC), which contains a thorough review of the case-law about the application of article 8 in the case of adult family members and concludes that there are no blanket rules and that each case should be decided on the basis of a careful analysis of its particular facts.  
(4)	The Judge’s primary conclusion was that article 8 was not engaged.  Since that conclusion is not now challenged I need not set out the reasoning in any detail.  In bare outline, he acknowledged that the evidence of the Appellant’s father was that there was a particularly close emotional bond between the Appellant and his mother; but he said (at para. 31) that:
 “the fact of his mother having chosen to settle in the UK in 2010 [is] indicative of a view on the part of both the Appellant and his parents that he was capable of looking after himself in Nepal albeit with the benefit of some financial assistance from the UK and that the separation would not be prejudicial to his emotional welfare.  Frankly this is nothing more than one would expect of a normal, healthy 25-year old adult male even when regard is taken of the cultural context.”
That point was then developed in the following paragraphs.  The Appellant was fit and there was no evidence that he was incapable of finding work and supporting himself.
(5)	At para. 35 he said that even if he had been satisfied that article 8 was engaged he would have found that any interference with family life was proportionate.  He gives no reasons, but it can fairly be inferred that he relied on essentially the same matters as in relation to the prior question. 
(6)	He then went on to consider the claim under policy SET12.  He started by observing that the earlier decision of the ECO should be treated as a nullity and that “it might therefore be argued with some force that the relevant date for consideration of the facts and the application of the policy is 12 March 2013 [sic] not 16 June 2010”.  However, he proceeded to consider the claim on both bases by way of alternative.  In relation to both he held that the policy did not require the ECO to exercise his discretion in the Appellant’s favour.
8.	The Appellant appealed to the Upper Tribunal.  He was represented, as he had been at all previous stages, by Mr Christian Howells of counsel.  One of the grounds of appeal concerned the application of the decision of this Court in Gurung v Secretary of State for the Home Department [2013] EWCA Civ 8, [2013] 1 WLR 2546.  Since that point is not pursued before us I need say no more about it.  The other two grounds of appeal were based on the fact that Judge Hembrough had considered both the article 8 claim and (it was contended) the claim under the policy by reference to the facts as they stood in March 2012 (or 2013) rather than June 2010.  In that connection  Mr Howells relied on dicta of Tomlinson LJ in UG (Nepal) [2012] EWCA Civ 58, which I will set out later.  
9.	The appeal was heard by DUTJ Peart on 9 September 2013.  By a determination promulgated on 23 September 2013 it was dismissed.  The Judge’s reasoning on the issue was brief.  He said, at para. 21:
“Judge Hembrough carried out an Article 8 balancing exercise … .  As Judge Hembrough explained at [29] of his determination, in his Article 8 assessment, by 12 March 2013 time had moved on and circumstances had changed.  I do not accept that UG in any way restricted Judge Hembrough to take account of the appellant’s circumstances as of the date of the first refusal in 2010, rather than the appellant’s circumstances as he found them before him in 2013.  I do accept that the developments that took place in the appellant’s life, by the effluxion of time, might be argued to have worsened his position in the sense of weakening of family ties and dependency, but I do not accept as a result that the judge’s approach was unfair and therefore unlawful.”
(The references in that passage to the second decision of the ECO having been made in 2013 follow the original mistake of the FTT: see para. 7 (2) above.)
THE APPEAL
10.	The Appellant appeals to this Court with permission granted by Vos LJ.  He has again been represented by Mr Howells.  The Respondent has been represented by Mr Tom Richards of counsel.  We are grateful to both for their succinct and persuasive submissions.  
11.	Although the original grounds of appeal had gone somewhat wider, Mr Howells at para. 4 of his skeleton argument summarised the basis of the appeal as follows:
“The appellant relies upon the sole ground [that] the Tribunal erred in law in not taking the factual nexus as at the date of the first of the two decisions by the [ECO] to refuse the appellant’s application for settlement under article 8 ECHR, where the first decision had been set aside as unlawful.  The Tribunal’s approach led to unfair treatment of the appellant in that the passage of time weakened his appeal under article 8 ECHR.  The Tribunal’s approach also differed to that of the respondent.” 
In short, the FTT erred in law in assessing the Appellant’s article 8 claim as at 2013 rather than as at the date of its original decision some three years earlier. 
12.	Although that is described as a single ground of appeal, it comprises two distinct arguments, which I will describe as the “date of decision” and the “fairness” arguments.  I take them in turn.  
(1)	  THE DATE OF DECISION ARGUMENT
13.	The legal basis for this argument is the provisions of sections 85 and 85A of the 2002 Act, as they stood at the material time (they have since been amended).  I start by setting out the material parts:
(1)	Section 85 (4) provided that:
“On an appeal under section 82 (1), 83 (2) or 83A (2) against a decision the Tribunal may consider evidence about any matter which it considers relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision”.
It is common ground that the appeal in the present case was made under section 82 (1) of the Act, which conferred a right of appeal against an “immigration decision” (as defined in section 82 (2)).  Section 85 (4) set out a well-understood general rule that, in essence, the Tribunal determines an appeal on the basis of the evidence before it rather than the evidence before the original decision-taker.
(2)	However, section 85 (5) provided that the rule in section 85 (4) was subject to the exceptions in section 85A.  Section 85A (2) read:
“Exception 1 is that in relation to an appeal under section 82 (1) against an immigration decision of a kind specified in section 82 (2) (b) or (c) the Tribunal may consider only the circumstances appertaining at the date of the decision”.  
Section 82 (2) (b) refers to “refusal of entry clearance”.  
(3)	Accordingly the decision in the present case – being a decision to refuse entry clearance – falls within section 85A (2) and, contrary to the general rule, the Tribunal was entitled only to consider the circumstances appertaining at the date of the decision appealed against.  (That is why, as Mr Richards accepted, Judge Hembrough’s point referred to at para. 7 (1) above is wrong.)  
I should mention for completeness that in AS (Somalia) v Secretary of State for the Home Department [2009] UKHL 32, [2009] 1 WLR 1385, the House of Lords held that these provisions – or, strictly, an earlier but substantially identical version of them – were not incompatible with article 8 of the Convention.  
14.	Mr Howells’ argument depends on the submission that the decision with which Judge Hembrough was concerned was the first decision of the ECO – that is, the decision taken on 16 June 2010.  If that is correct, the effect of section 85A (2) is that the Judge was not entitled to consider anything which had occurred since that date, whereas he in fact explicitly considered the position as it stood in 2013 – see para. 7 (2) above.  
15.	In support of that submission Mr Howells referred us to the decision of the Upper Tribunal in Secretary of State for the Home Department v Greenwood [2014] UKUT 342 (IAC), [2014] Imm AR 6.  In that case Mr Ockelton, the Vice-President of the Chamber, questioned whether the FTT has power to “remit” a decision to the primary decision-maker following a successful appeal: rather, he suggested, the original decision having been held to be not in accordance with the law, the application in question remains outstanding, awaiting a lawful decision (see para. 17).  Mr Howells acknowledged that the ECO had had to take a fresh decision on the policy question, because it had been held that he had got that wrong; but he submitted that since there had been no criticism of his reasoning under article 8 that aspect of the first decision accordingly stood and constituted the decision with which Judge Hembrough was concerned.
16.	I do not accept that it is possible to split the decision made by the ECO in the way proposed by Mr Howells.  The Appellant’s application was an undifferentiated application for leave to enter, albeit advanced on more than one basis in law; and the ECO’s decision to refuse that application was likewise a single decision.  Greenwood does not assist him: the present point was not in issue, and in any event Mr Ockelton refers to “the application” remaining outstanding.  The ECO on the second occasion understood the position correctly when he said that the article 8 point required to be “re-visited”.  The procedural position reflects this reality.  The appeal before Judge Hembrough was undoubtedly in form an appeal from the ECO’s decision of 12 March 2012 and is treated as such in the Appellant’s Grounds of Appeal to the Tribunal.  
17.	Accordingly, I would reject the date of decision argument.  The decision under appeal was, as regards article 8 as much as the policy issue, the ECO’s decision of 12 March 2012; and the relevant circumstances were thus, in accordance with section 85A (2), those appertaining at the date of that decision. 
(2)	   THE FAIRNESS ARGUMENT
18.	Mr Howells’ second argument was that, even if the formal focus was on the 2012 decision, it was in the particular circumstances of the case unfair that the FTT should rely on the facts as they stood as at that date rather than as they stood in 2010.  He relied on two points, which I take in turn.
19.	First, he submitted that the ECO himself in the 2012 decision had proceeded on the basis of the facts as they were in 2010 and accordingly that it was unfair that the FTT should proceed on any different basis.  I am not sure that that follows; but in any event I believe that the premise is wrong.  I agree that the approach of the ECO is not wholly explicit; but for the reasons given at para. 6 (2) above I think that the better view is that in addressing the article 8 issue he was considering the position as it was in 2012.
20.	Secondly, Mr Howells pointed out that Judge Hembrough had explicitly proceeded on the basis that the Appellant’s case under article 8 had been weakened by the passage of time between 2010 and 2013 (or, rather, 2012): “time had moved on and circumstances had changed” (see para. 7 (2) above).  But the only reason why the FTT was considering the Appellant’s article 8 claim on the basis of the circumstances at the latter date was that the ECO had applied the wrong policy first time round, which had led to the FTT on the first appeal not having to consider the article 8 claim and it having to be “re-visited” two years later.  It was unfair that he should be prejudiced by that error, for which he was in no way responsible, and accordingly any change in his circumstances in the intervening period should be ignored.  
21.	In support of that submission Mr Howells relied on a passage in the judgment of Tomlinson LJ in UG (Nepal) v Entry Clearance Officer [2012] EWCA Civ 58.  In that case it was conceded in this Court that the decision of an ECO to refuse entry clearance had been made on the basis of an incorrect understanding of the applicable policy.  (No claim was made under article 8.)  There was an issue as to whether it was necessary to remit the case to the ECO for a fresh decision.  It was held that it was.  At para. 28 of his judgment (with which Arden and Sullivan LJJ agreed) Tomlinson LJ gave guidance as to the approach which the ECO should take on remittal, as follows:
“… The ECO should in each case apply the policy which was in force as at the date of the respective applications, but he should apply it to the facts as he finds them to be as at the time of his decision.  …  The ECO is entitled to take into account developments subsequent to the date of the initial application, insofar as they amount to a material change of circumstances. In so proceeding the ECO will of course be mindful of the need not to permit a material change of circumstances to lead to unfair treatment of an applicant [my emphasis]. But changes of circumstance can cut both ways. Serious illness may have intervened which was not present at the time of the application. There would be no unfairness in denying settlement rights in the UK to a once-dependent applicant who has subsequently married or formed some liaison with a millionaire overseas.”
Mr Howells submitted that the weakening of the Appellant’s article 8 case by the delay between 2010 and 2012 was a good illustration of the kind of material change of circumstance which the FTT, being the relevant decision-maker, was obliged – in accordance with Tomlinson LJ’s admonition as italicised above – to ensure did not lead to unfair treatment. 
22.	I do not regard Tomlinson LJ’s observations in UG as applicable to the present case.  He was concerned with the application of a policy and not with a claim under article 8.  The decision of the House of Lords in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, [2009] 1 AC 1159, addresses directly the question of the proper approach to claims under article 8 where the claim has been weakened by the passage of time as a result of culpable delay which is the responsibility of the Secretary of State. The facts were that the consideration of the application of a Kosovar asylum-seeker was delayed, initially because the Secretary of State wrongly asserted that he had failed to lodge a claim in proper form and latterly because of unexplained inertia; and the result of that delay was that the asylum claim became unsustainable.  The claimant, however, pursued a claim under article 8 and sought to rely on the Secretary of State’s delay in that connection.  Lord Bingham, with whom the majority agreed, started by rejecting, at para. 13 of his opinion, the submission (not in fact made in that case but appearing in earlier authority) 
“… that if the decision on an application for leave to enter or remain was made after the expiry of an unreasonable period of time, and if the application would probably have met with success, or a greater chance of success, if it had been decided within a reasonable time, and if the applicant had in the meantime established a family life in this country, he should be treated when the decision is ultimately made as if the decision had been made at that earlier time”
(p. 1188H).  He accepted that “the duty of the decision-maker is to have regard to the facts, and any policy in force, when the decision is made [my emphasis]” (p. 1189B)).  He went on to identify ways in which delays in decision-making might nevertheless be relevant to the proportionality exercise.  The first two instances that he considers (at paras. 14 and 15) have no potential application to the present case.  But at para. 16 (p. 1189 G-H) he makes the point that “[d]elay may be relevant … in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control, if the delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes”, and that that may be relevant to the proportionality assessment in a given case.  The reference to a “dysfunctional system” reflects the circumstances of the particular case, but I do not understand it to be of the essence: the underlying point is that a culpable delay in decision-making which leads to a seriously unfair outcome may in principle be relevant to the assessment of proportionality.  Lady Hale in her concurring opinion referred more generally to “prolonged and inexcusable delay”: see para. 32 (p. 1194 F-G).     
23.	It seems to me that the passage from para. 13 of Lord Bingham’s opinion which I have quoted above is incompatible with Mr Howells’ submission that Judge Hembrough was obliged to assess the article 8 claim on the basis of the facts as they stood in 2010.  On the contrary, he was obliged to do so on the facts as they stood at the date of the decision (being, exceptionally, because of section 85A (2), the date of the decision of the ECO rather than his own decision).  That is in substance what he did (his reference to 2013 rather than 2012 being admittedly immaterial).  In so far as he was entitled to have regard to the prejudice arguably caused to the Appellant’s case by the passage of time caused by the Respondent’s initial application of the wrong policy, he could only do so in the context of the proportionality assessment. 
24.	That is sufficient to dispose of the Appellant’s case as advanced by Mr Howells.  But I should say that even if he had formulated his complaint as a challenge to Judge Hembrough’s failure to take into account in his proportionality assessment the prejudice caused by the delay I do not believe the challenge could have succeeded.  In the first place, the Judge’s principal decision was that article 8 was not engaged at all: see para. 7 (4) above.  The original grounds of appeal had sought to challenge that finding, but Mr Howells abandoned that point.  Secondly, while the Judge was no doubt right in principle to say that the passage of time had weakened the claim under article 8, it does not follow, and I very much doubt, that it could have succeeded on the basis of the facts as they stood at 2010 either.  I do not believe that the interval of two years (in fact one year and nine months) was of great significance.  The circumstances on which the Judge relied in reaching his conclusion were essentially as applicable in 2010 as in 2012. 
25.	This conclusion renders it unnecessary to consider other arguments advanced by Mr Richards on this part of the appeal.  But I will briefly mention two, which may possibly be of some wider application.
26.	First, Mr Richards submitted that the fairness argument was conclusively answered by the terms of section 85A (2): the FTT was obliged to consider “only the circumstances appertaining at the date of the decision” – being, as established above, the 2012 decision – and was not therefore permitted to take into account the circumstances appertaining at the date of the 2010 decision.  I do not accept that.  The purpose of section 85A (2), being an exception to the general rule in section 85 (4), is to exclude reference to circumstances arising subsequently to the decision appealed against.  In any event, I do not see why in principle an unfairness of the kind relied on by the Appellant cannot constitute part of the circumstances appertaining at the date of the decision.
27.	Secondly – with, it must be said, some encouragement from the Court – Mr Richards relied on the recent decision in R (TN (Afghanistan)) v Secretary of State for the Home Department, [2015] UKSC 40, [2015] 1 WLR 3083, in which the Supreme Court held (over-ruling R (Rashid) v Secretary of State for the Home Department, [2005] EWCA Civ 608) that it was not open to a tribunal to allow a claim for asylum or humanitarian protection that was not justified at the date of decision on the basis that the claim would or might have succeeded but for some culpable delay on the part of the Secretary of State that prevented it being considered sooner.  The broad thrust of the reasoning is indeed similar to that of Lord Bingham at para. 13 of his opinion in EB (Kosovo); but it is less directly in point because it is concerned with asylum claims rather than claims under article 8.  
CONCLUSION
28.	I would dismiss this appeal.
Lord Justice Simon:
29.	I agree.
Lady Justice Rafferty:
30.	I also agree.