New Article 8 case: R on the application of Aliyu and another v SSHD  EWHC 3919 (Admin)
In R on the application of Aliyu and another v SSHD  EWHC 3919 (Admin) the Claimants were sisters who arrived in the UK from Nigeria aged 11 and 10. At the date of hearing the Claimants were 22 and 21 years old respectively.
The Claimants had travelled to the UK in January 2004 as visitors in order to visit their grandmother. However, following their arrival they remained with their maternal aunt, who was a British citizen. Their leave expired in July 2004 and they remained in the UK unlawfully thereafter.
In June 2012, before the Immigration Rules were amended, the Claimants applied for leave to remain on the basis of their private and family life in the UK. Their applications were refused by the Secretary of State in February 2013.
The Secretary of State was not satisfied that the Claimants were able to satisfy the requirements of Appendix FM of the Immigration Rules for the grant of leave to remain on the basis of their family life, and was further not satisfied that the Claimants satisfied the requirements set out in paragraph 276ADE of the Immigration Rules for leave to remain on the basis of their private life.
The covering letter from the Home Office addressed to the first Claimant stated that her case had been considered on an ‘exceptional basis’ but found that the wish to remain in the UK with her family did not give her a right to remain in the UK exceptionally. The refusal decision in respect of the second Claimant gave no consideration whatsoever to the question of exceptional circumstances.
The Claimants sought to challenge the refusal decisions on the following grounds:
(1) The Secretary of State had acted unlawfully by refusing their applications for leave to remain by reference to the ‘new’ Immigration Rules which came into effect on 9 July 2012 when their applications had been made prior to that date;
(2) The Secretary of State had failed to give independent consideration to Article 8;
(3) The Secretary of State had failed to consider whether to exercise discretion outside the Rules under Article 8 on the basis that there were exceptional circumstances justifying the grant of leave.
Application of the post 9 July 2012 Immigration Rules
Although not pleaded as part of the Claimants’ grounds, the Claimants sought to argue that the application of the post 9 July 2012 Immigration Rules to a pre-9 July 2012 application was unlawful, relying on the Court of Appeal authority in Edgehill and another v Secretary of State for the Home Department  EWCA Civ 402.
Despite the absence of pleading this ground, the court proceeded to address the submissions made on this point.
Whilst the court declined to resolve the conflict between Edgehill and Haleemudeen v Secretary of State for the Home Department  EWCA Civ 558, the court followed the approach in the former case.
The court in this case found that the application of paragraph 276ADE, even if legally wrong in the light of Edgehill, was not material to the Secretary of State’s decisions. This is because the Claimants were unable to demonstrate that the application of paragraph 276ADE was material to the outcome of their applications since they were not able to satisfy any Immigration Rule in force prior to 9 July 2012, particularly as they had not established 10 years continuous lawful residence or 14 years residence.
Independent Consideration of Article 8
The Claimants contended that having rejected their applications under the Immigration Rules the Secretary of State was required to carry out an independent consideration of their claims under Article 8 of the ECHR.
The Court made it clear that the Secretary of State is required to apply the requirements of the Rules first. If the Rules are not met the Secretary of State must go on to consider exercising her discretion to grant leave to remain outside the Rules on the basis of Article 8. It appears from what is said by the judge in the third sentence of paragraph 59 that there is no threshold of ‘arguability’ which triggers the assessment of an Article 8 claim outside the Rules. The judge held at paras 58 and 59:
‘In my judgment, the analysis in Ganesabalan is most helpful and I agree with, and gratefully adopt, it. It seeks to take into account the Court of Appeal's view in MM (Lebanon) and link that to the two-stage approach accepted in Nagre which was confirmed by the Court of Appeal in MF (Nigeria).
In my judgment, the Secretary of State (apart from 'complete code' situations) always has a discretion to grant leave outside the Rules. That discretion must be exercised on the basis of Article 8 considerations, in particular assessing all relevant factors in determining whether a decision is proportionate under Article 8.2. There is, in principle, no "threshold" criterion of "arguability". I respectfully agree with what Aikens LJ said in this regard in MM (at ). However that factor, taken together with other factors such as the extent to which the Rules have taken into account an individual's circumstances relevant to Article 8, will condition the nature and extent of the consideration required as a matter of law by the Secretary of State of an individual's claim under Article 8 outside the Rules. If there is no arguable case, it will suffice for the Secretary of State simply briefly to say so giving adequate reasons for that conclusion. At the other extreme, where there are arguable good grounds that the Rules do not adequately deal with an individual's circumstances relevant in assessing Article 8, the Secretary of State must consider those circumstances and identifiably carry out the balancing exercise required by proportionality in determining whether there are "exceptional circumstances" requiring the grant of leave outside the Rules under Article 8’.
The judge continued and held that following the judgment in Ganesabalan (R on the application of Ganesabalan v Secretary of State for the Home Department  EWHC 2712 (Admin), a failure to consider whether to exercise discretion outside the Rules will be unlawful, but the court will not necessarily interfere with the decision where the decision would ‘inevitably’ have been the same (at 60 and 61).
On the facts of the case, the judge found the following factors to be relevant when considering Article 8 outside the Rules:
- Age of the Claimants on arrival;
- Their pre-18 relationships and post-18 relationships with their aunt and other family in the UK;
- The Claimants had spent their formative years in the UK, albeit unlawfully;
- The fact that the Claimant’s mother had passed away shortly before they travelled to the UK and that their father has not had any involvement in their lives since arriving in the UK.
The judge went on to state at 65:
‘In my judgment, it would be sufficient for the Secretary of State to take the factors I have identified into account in assessing whether there were "exceptional circumstances" applying the criterion of whether the circumstances were "compelling" such as to produce "unjustifiably harsh consequences" so as to outweigh the public interest’.
On the facts of the case the Court found that no adequate assessment had been made outside the Rules and as a consequence the refusal decisions in respect of both Claimants were found to be unlawful.
Exercise of discretion outside the Rules
The Claimants further contended that the Secretary of State’s refusal decisions were unlawful by failing to consider whether to exercise discretion outside the Rules.
The Court continued to find that the Claimants were entitled, as a matter of law, to the separate and individual consideration of their circumstances. At paragraph 73 the judge held:
[…]even assuming that the Secretary of State could carry out her legal obligation to consider the exercise of discretion outside the Rules not in the decision letter itself but rather in a covering letter, the bald assertion that C1's case has been "considered on an exceptional basis" cannot in the circumstances of C1 be seen as an adequate assessment of her circumstances under Article 8 outside the Rules. The covering letter apart from that bald assertion does little more than state that C1 does not have the right to remain "on an exceptional basis" having made submissions based on her family and private life in the UK […]In my judgment, the Secretary of State had, as a minimum, to engage with C1's circumstances that merited consideration outside the Rules.
The judge concluded that the decision letters did not lawfully consider the Claimant’s claims to remain in the UK outside the Immigration Rules under Article 8 of the ECHR.