AH AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT [2017] ScotCS CSOH_154 (07 December 2017)
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OUTER HOUSE, COURT OF SESSION
[2017] CSOH 154
P447/17
OPINION OF LORD PENTLAND
In the petition
AH
against
Secretary of State for the Home Department
Petitioner
Defender
7 December 2017
Petitioner: Caskie; Drummond Miller LLP
Respondent: Smith; Office of the Advocate General
[1] In this Petition for Judicial Review the petitioner, a citizen of the United States of
America, sought reduction of a decision made on behalf of the Secretary of State for the Home
Department (“the Secretary of State”) on 17 February 2017 to the effect that certain additional
representations that he should be allowed to remain in this country did not amount to a fresh
claim for the purposes of paragraph 353 of the Immigration Rules. The case called before me
for a substantive first hearing, at which both the petitioner and the Secretary of State were
represented by counsel.
[2] The Secretary of State accepted that the further information submitted to her
constituted new material, but decided that the new matters were not significantly different
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from the information that had previously been submitted and therefore the new information
did not amount to a fresh claim for the purposes of paragraph 353.
[3] As the decision letter records, the basis of the application made to the Secretary of
State was essentially that the petitioner’s British partner, Ms B, has a severe alcohol-related
medical condition and that there would be insurmountable obstacles to her ever emigrating to
the United States to live there with the petitioner.
[4] The debate before me at the first hearing focussed on the meaning and effect, in the
petitioner’s case, of certain paragraphs of the Immigration Rules. These provisions are set out
in full in paragraph 10 of the decision letter. They are known as EX.1 and EX.2.
[5] Paragraph EX.1 provides as follows:
“This paragraph applies if
…
(b) the applicant has a genuine and subsisting relationship with a partner who is in
the UK and is a British citizen settled in the UK or in the UK with refugee leave or
humanitarian protection and there are insurmountable obstacles to family life with
that partner continuing outside the UK.”
Paragraph EX.2 states the following:
“For the purposes of paragraph EX.1(b) ‘insurmountable obstacles’ means the very
significant difficulties which would be faced by the applicant or their partner in
continuing their family life together outside the UK and which could not be overcome
or would entail very serious hardship for the applicant or their partner.”
Paragraph 10 of the decision letter included the following:
“Although (Ms B) is British it is not considered this presents an insurmountable
obstacle to family life continuing overseas in the United States of America, with the
support of you and your family who continue to reside in the United States of
America. It would also be reasonable to expect family and private life to continue
from overseas by telephone, social media and the internet, and through occasional
visits until you or (Ms B) are able to satisfy the respective immigration requirements of
the United States of America or the United Kingdom for leave to enter as a partner.”
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[6] It is also important to set out paragraphs 16 and 17 of the decision letter, around which
much of the debate at the first hearing revolved. Paragraph 16 stated the following:
“You state that the USA does not make provision for cohabiting partners to be
admitted to the States. For a fiancé application you would require an income
of $20,024 to be admitted. You state that as a couple you do not have such an income
and that (Ms B) would not qualify for a waiver as she does not fall within the
categories listed. You stated that this therefore is an insurmountable obstacle to family
life continuing outside of the United Kingdom, as (Ms B) could not go to the USA.”
Paragraph 17 continued as follows:
“This point has been carefully considered. Whilst it is accepted that you are in a
genuine and subsisting relationship with (Ms B), it is considered that you have built a
relationship with a British citizen in the full knowledge that you have no leave to
remain in the United Kingdom and would at some point be expected to leave the
country if you were unable to regularise your status and were found to have
overstayed. It is acknowledged that the rules and regulations governing immigration
in the USA may mean that (Ms B) is currently unable to apply under her preferred
category, however, it is considered that (Ms B) may currently be eligible to apply for a
visitor visa. It would then be your responsibility as a couple to ensure that you fully
met any requirements made by the USA or the United Kingdom before making any
further applications or plans to reside together.”
[7] Mr Caskie for the petitioner advanced three lines of argument. First, he submitted that
for the purposes of paragraphs EX.1 and EX.2 family life meant only family life where both
partners were living together in a country outside the United Kingdom. So, Mr Caskie
argued, the Secretary of State was wrong to proceed on the footing that in this context family
life could continue where one partner was in the United Kingdom and the other was abroad
and they were able to remain in touch by visits and by telephone and internet contact.
Second, Mr Caskie submitted that in paragraph 17 of the decision letter the Secretary of State
had taken account of an irrelevant consideration, namely the precarious nature of the
petitioner’s unlawful residence in this country. Whilst Mr Caskie acknowledged that this
factor could play a part in an assessment of whether there had been an infringement of
Article 8 ECHR rights, it could properly arise only in a case outside the Immigration Rules; it
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was irrelevant to the exercise of considering whether paragraphs EX.1 and EX.2 of the
Immigration Rules applied in the circumstances of the petitioner’s case. Third, Mr Caskie
maintained that by looking at the prospects of Ms B succeeding in attaining the right to live
permanently in the United States in the future the Secretary of State had misdirected herself.
On a proper analysis all that mattered was the position as at the date of the Secretary of State’s
decision, namely 17 February 2017.
[8] I shall deal with each of Mr Caskie’s submissions in the order in which they were
advanced.
[9] On the first point, I consider that family life for the purposes of paragraphs EX.1
and EX.2 should not be read in the narrow way suggested by Mr Caskie. In my opinion, it is
certainly possible for family life within the meaning of those provisions to continue whilst the
relevant family members are in different countries. In the context of the present case I see no
reason why there could not be said to be a meaningful continuation of family life for the
purposes of the relevant paragraphs of the Immigration Rules whilst Ms B remains in the
United Kingdom and the petitioner is in the United States. On this branch of the argument I
find myself in agreement with the submission advanced by Miss Smith in her Note of
Argument for the respondent that family life is not a fixed idea; rather it is a wide-ranging
notion. Family members often have to spend time apart and sometimes for lengthy periods of
time, but these separations do not in themselves mean that family life thereby disintegrates or
is in some sense suspended. It seems to me that it can continue, although it may have to be
experienced in different ways and at different levels than if the parties were living together
under the same roof in a single country.
[10] As to Mr Caskie’s second line of argument, I am not persuaded that any irrelevant
matter has been taken into account in paragraph 17. The first sentence is, in my view,
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included merely as background to what follows or, putting it another way, as context setting
the scene for the paragraph as a whole. The sentence simply draws attention to the fact that
the petitioner had been living in this country in the knowledge that he was likely at some
stage to be called upon to leave if he was not able to put his immigration status onto a regular
footing. In those circumstances, one might have expected that the petitioner would have done
more than he has in fact done to assemble convincing evidence that there would be
insurmountable obstacles to the parties eventually living together on a permanent basis in the
United States.
[11] On Mr Caskie’s third point, I do not agree that the focus must only be on the parties’
circumstances as at the date of the decision. This seems to me to be unrealistic. The idea
behind paragraphs EX.1 and EX.2 is to allow consideration to be given to whether obstacles
can be overcome. That seems to me to have an inherently forward-looking perspective.
Otherwise the position would be highly artificial and would open the door to manipulation of
matters by unscrupulous applicants. The dictum of Lord Mulholland in the case of Amjad v
Secretary of State for the Home Department [2017] CSOH 12 at paragraph [8], on which Mr Caskie
placed some reliance, cannot in my view be read across to the context of the present case;
Amjad was concerned with quite different questions than those which arose before me.
[12] Stepping back from the details of the decision letter for a moment and trying to take a
realistic view of matters, it seems to me that the petitioner failed to put before the Secretary of
State anything that came close to a plausible case that there would be insurmountable
obstacles in the way of Ms B joining him in the United States in the fullness of time. I note
that in her statement she expressed the hope that the parties will marry one another and
observed that the petitioner has received many job offers in this country. In these
circumstances, there is no convincing reason to suppose that she would not in due course be
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able to join the petitioner in the United States on the basis of a fiancé application when he has
secured employment there at the modest earnings of $20,024 per annum. It is these
considerations that the decision-maker clearly had in mind in paragraphs 16 and 17 of the
decision letter. Understood in that light, the considerations referred to in those paragraphs
seem to me to be entirely germane to the issues raised by paragraphs EX.1 and EX.2 of the
Immigration Rules.
[13] In these circumstances, I consider that the decision taken on behalf of the Secretary of
State and reflected in the decision letter was at least a reasonable one. Indeed, I would go
further and say that it appears to me to have been clearly the correct decision. There is no
reason to think that the decision was not taken with anxious scrutiny; the contrary was not
suggested by Mr Caskie. There was, I consider, no basis for supposing that an immigration
judge might regard the new information as sufficient to justify allowing the petitioner to
remain in this country. On the contrary, the totality of the information put before the
Secretary of State was thin and unconvincing for the purpose of attempting to demonstrate
that the obstacles to the petitioner and Ms B having a family life outside the United Kingdom
were insurmountable.
[14] For these reasons I must refuse the Petition. I shall sustain the respondent’s fourth and
fifth pleas-in-law and repel the petitioner’s pleas. I shall find the petitioner liable to the
respondent in the expenses of the Petition and modify the petitioner’s liability for those
expenses, as an assisted person, to nil.
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