Immigration Lawyers Must Focus On Facts Not Law, Says Court Of Appeal

Yesterday the Court of Appeal considered the case of Parveen v The Secretary State for the Home Department [2018] EWCA Civ 932, on appeal from an oral permission hearing in the Upper Tribunal to judicially review the decision.

Underhill LJ’s final paragraph expressed the concern that permeates the entirety of his judgment and which is a careful warning for advisers and individuals alike: “this Court sees too many cases in which applicants for leave or their advisers — particularly in cases depending on article 8 outside the Rules — devote their energies to setting out extracts from the case-law rather than to demonstrating a compelling case based on the details of the applicant’s particular circumstances. The latter exercise may require more work, but it is what the Secretary of State, and if necessary the Tribunal, will be more concerned with. Cases of this kind generally turn on their facts, and the applicable law does not require elaborate exposition”.

The Appellant’s immigration history was simple — Khalida Parveen (“Parveen”) is a Pakistani national, aged 44, who had entered the UK in 2000 as the spouse of a British citizen. Her leave to enter expired the following year and it was only after 13 years that she sought to apply for leave to remain.

First Ground of Appeal – 276ADE(1)(vi)

Lord Justice Underhill, who gave the majority judgment (Lady Justice Asplin and Lady Justice Gloster simply agreeing) considered the test of “very significant obstacles to integration” in 276ADE(1)(vi) to be broken down as follows:

• integration “calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life” as per Sales LJ at para 14 in Kamara v SSHD [2016] EWCA Civ 813.
• very significant obstacles “erects a self-evidently elevated threshold, such that mere hardship, mere difficulty, mere hurdles and mere upheaval or inconvenience, even where multiplied, will generally be insufficient in this context” as per McCloskey J and UTJ Francis at para 37 in Treebhawon v SSHD [2017] UKUT 13 (IAC). On this point, Underhill LJ agreed that it was fair enough that mere hardship did not meet the connoted elevated threshold; however, he was not sure that anything of substance was added by the latter half of the definition. Instead he rephrased the task of the SSHD or Tribunal more textually and simply: “to assess the obstacles to integration relied on, whether characterised as hardship or difficulty or anything else, and to decide whether they regard them as “very significant”. There is no attempt at further breaking down “very significant”, the meaning of which appears plain.

Underhill LJ criticised the covering letter, from the recently shut down Malik Law Chambers, which “expatiates at some length, though with almost no particularity”.

As the application was one made with regard to Ex.1 of Appendix FM, or alternatively Article 8 outside the rules, the covering letter did not in the further alternative explicitly address the requirements of 276ADE(1)(vi). Only one paragraph of the covering letter could be relied upon to show the very significant obstacles to Parveen’s reintegration into Pakistan, and it contained the “bare assertion” that Parveen had “lost all connections” and had no-one to return to in Pakistan. As a further failure, no evidence supporting these statements was submitted at any point in the application, review or appellate process.  

Lord Justice Underhill referred to the bare assertion as “plainly insufficient”, as he considered it prima facie surprising that she would have lost all connections, and the Secretary of State is “entitled to expect some particularised explanation of how it had come about, and why, in consequence, she would face such problems on return”. This suggests a presumption of retention of ties, and therefore a burden to be discharged by the applicant/appellant or the adviser in their cover letter to show why she no longer has these ties. It would have been important to include information about her life in her country of origin, before she came to the UK: where she lived; what friends and family she had; whether she worked and what her educational or other qualifications were; what had become of her family and friends, and how despite (what the SSHD tends to call) modern methods of communication, she lost touch with them.

Ground 2 – Article 8 Outside the Rules

The second ground of appeal was made on the basis that the SSHD had failed to give “independent and proper consideration” to the claim under Article 8 outside the rules.

Underhill LJ notes several passages in the refusal letter which seem to be the Home Office’s ordinary templated paragraphs, with a few of Parveen’s details inserted, and considers that on that basis the Secretary of State plainly did consider the Article 8 claim.

Having had the ratio of his judgment in R (Caroopen and Myrie) v SSHD [2016] EWCA Civ 1307 recited back to him by Mr Zane Malik, who was also counsel in that case, Underhill LJ acknowledged that while Judges’ loose language does not necessarily betray a material misdirection in law, the function of the court in judicial review proceedings goes beyond conventional review criteria and requires it to make its own assessment in Article 8 cases.

In making the assessment as to whether the SSHD erred in assessing Pareveen’s Article 8 rights, outside the rules, Underhill LJ considered that the second ground suffered from the same defect as the first, in that the representations in the cover letter failed to address the following relevant points:

• Whether, if an application had been made before her expiry of leave to enter, she would have been entitled to leave to remain, and in due course indefinite leave to remain;
• Whether there was a good, or at least “venial”, reason for her failure to make such an application;
• Whether she continues to satisfy the substantive requirements for leave to remain as a spouse; and
• Whether it would cause real disruption for her to have to leave the country to make now from abroad the application she should have made before and which would be certain to succeed. (Note, this latter point relates to the ratio in Chikwamba v SSHD [2008] UKHL 40 which relates that if a person is certain to be granted entry clearance, it would be an empty but disruptive formality to require them to leave and so apply.)

Conclusion

Much of the judgment is simply judicial admonishment that the application was prepared with such generalisation. Therefore, in order to insulate an applicant all eventualities, including consideration of private life under 276ADE(1)(vi) and Article 8 outside the rules, should be prepared thoroughly and addressed adequately in a cover letter which refers to the factual circumstances of the applicant and to any corresponding supporting evidence.

Contact our Immigration Barristers

For expert advice in relation to making or challenging an application for leave to remain on the basis of private or family life, contact our Immigration Barristers in London on 0203 617 9173 or complete our enquiry form.