Ss (Congo) (Appellant) v Entry Clearance Officer, Nairobi (Respondent)
[2017] UKSC 10
Hilary Term
[2017] UKSC 10
On appeals from: [2014] EWCA Civ 985 and [2015] EWCA Civ 387
| JUDGMENT |
R (on the application of MM (Lebanon)) (Appellant) v Secretary of State for the Home Department (Respondent) R (on the application of Abdul Majid (Pakistan)) (Appellant) v Secretary of State for the Home Department (Respondent) R (on the application of Master AF) (Appellant) v Secretary of State for the Home Department (Respondent) R (on the application of Shabana Javed (Pakistan)) (Appellant) v Secretary of State for the Home Department (Respondent) SS (Congo) (Appellant) v Entry Clearance Officer, Nairobi (Respondent)
before
Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Reed
Lord Carnwath
Lord Hughes Lord Hodge
JUDGMENT GIVEN ON
22 February 2017
Heard on 22, 23 and 24 February 2016
Appellant (MM Respondent (SSHD) (Lebanon))
Manjit Singh Gill QC Lisa Giovannetti QC Tony Muman Neil Sheldon Navtej Singh Ahluwalia Alan Payne (Instructed by J M Wilson (Instructed by The
Solicitors) Government Legal
Department)
Appellant (Abdul Majid Interveners (Children’s
(Pakistan))
Commissioner and Joint Council for the Welfare of
Immigrants)
Ramby de Mello Karon Monaghan QC Danny Bazini Victoria Laughton Neil Garrod (Instructed by Bhatia (Instructed by Freshfields
Best) Bruckhaus Deringer LLP)
Appellant (Master AF)
Richard Drabble QC
Tony Muman
Joseph Neville
(Instructed by RBM
Solicitors)
Appellant (Shabana Javed
(Pakistan))
Ramby de Mello
Aftab Rashid
(Instructed by
Birmingham Law Practice
Ltd)
Appellant (SS (Congo))
Richard Drabble QC
Tony Muman
Joseph Neville
(Instructed by JM Wilson
Solicitors LLP)
LADY HALE AND LORD CARNWATH: (with whom Lord Kerr, Lord
Wilson, Lord Reed, Lord Hughes and Lord Hodge agree)
Introduction
1. In July 2012, a new Appendix FM was inserted into the Immigration Rules, dealing with the entry requirements for non-EEA family members to join their relatives here. Section EC-P dealt with entry clearance and leave to remain as the partner of a British citizen in the United Kingdom, or a person settled in the United Kingdom, or a refugee or person with humanitarian protection in the United Kingdom. By partner is meant a spouse or fiancé(e), a civil partner or proposed civil partner or a person living in a relationship akin to marriage or civil partnership for at least two years. Section E-ECP dealt with the financial requirements. These were more precise and stringent than anything which had gone before (and are here
referred to as “the Minimum Income Requirement” or “MIR”). Put shortly, they
required that the sponsoring partner have a gross annual income of at least £18,600, with an additional £3,800 for the first dependent non-EEA national child and £2,400
for each additional such child. Only the sponsor’s earnings are to be taken into
account: the prospective earnings of an entering partner, and any support from third parties, are ignored. Alternatively, the couple are required to have substantial
savings, £16,000 plus two and a half times the shortfall in the sponsor’s earnings.
2. Estimates differ as to the proportion of the adult population who can meet these requirements but it is clear that a substantial number cannot do so, especially if they have children. Median full-time gross earnings in the UK in 2012 were £26,500 but for men they were £28,700 and for women £23,100. There were also substantial regional differences, with people in London and the south-east earning above the national median and people in Northern Ireland, Wales, and the north east earning considerably below (Office for National Statistics, Statistical Bulletin: Annual Survey of Hours and Earnings: 2012 Provisional Results, November 2012); the 2015 Provisional Results were published in November 2016. 301 out of the 422 occupations listed had average annual earnings below £18,600. Among those earning below that figure were many providing essential public services.
3. Four of the cases before us, MM, AF, AM and SJ (for convenience we shall refer to all the parties by initials), are claims for judicial review of the MIR launched around the time that Appendix FM was first introduced. The MIR is challenged on the ground that it is incompatible with the rights of the claimants and their partners (and a child living with one of them) under articles 8, 12 and/or 14 of the European Convention on Human Rights and also that it is unreasonable and ultra vires on common law principles. The claimants enjoyed a measure of success before Blake J in the Administrative Court: [2013] EWHC 1900 (Admin); [2014] 1 WLR 2306.
The Court of Appeal allowed the Home Secretary’s appeal: [2014] EWCA Civ 985;
[2015] 1 WLR 1073. The fifth case, SS, is an appeal against the refusal of entry clearance because of failure to meet the MIR. The appeal succeeded on article 8 grounds in both the First-tier Tribunal and the Upper Tribunal. The Court of Appeal
heard the Entry Clearance Officer’s appeal, along with five other selected test cases,
and the appeal was allowed: [2015] EWCA Civ 387; [2016] 1 All ER 706. The
Supreme Court directed that all five appeals be heard together.
The MIR and the background to its introduction
4. Before the introduction of the MIR, the Immigration Rules required broadly that the parties would be able to maintain and accommodate themselves and any
dependants “adequately in the UK without recourse to public funds”, which included
social housing and most welfare benefits but not the NHS, education and social care.
This is still the criterion which applies if the applicant’s partner is in receipt of
disability living allowance or similar disability-related benefits (see Appendix FM, para E-LTRP 3.3). In KA and others (Pakistan) [2006] UKAIT 00065; [2007] AR 155, the Upper Tribunal adopted income support as the test of adequate maintenance - at that level it could not be said that the family were not properly maintained but neither should it be contemplated that immigrants would live below that level. This reasoning was approved by the Court of Appeal in AM (Ethiopia) v Entry Clearance Officer [2008] EWCA Civ 1082, [2009] Imm AR 254, para 78. This amounted to around £5,500 a year after deduction of tax and housing costs.
5. Problems were encountered with that approach. The assessment did not depend upon a set income threshold but on a consideration of current and prospective employment income of both parties, the extent of any other financial means, including the support of third parties, and their housing costs. Entry clearance officers and case workers found that it was difficult to apply the test consistently and for applicants and sponsors to assess whether they would meet it. It was complex to administer, particularly in respect of any benefits which the sponsor might claim, as it was difficult to know whether these were the result of admitting the partner. It did not prevent burdens on the system arising over the longer term once the partner had qualified for settlement and thus for full access to welfare benefits.
6. Hence the Home Office set about devising an alternative policy. A consultation paper proposing a new minimum income threshold for sponsors wishing to bring a non-EEA national spouse or partner or dependants into the UK, set at a higher level than the safety net of income support, was published in July 2011. At the same time the Government asked the Migration Advisory Committee to consider what the minimum threshold should be in order to ensure that the sponsor could support a partner and any dependants independently without their becoming a
burden on the state. The Committee’s Report, Review of the minimum income
requirement for sponsorship under the family migration route, was published in
November 2011.7. The Committee based its calculations on the gross income received by the sponsor in the United Kingdom, without deducting housing costs, which it believed were open to manipulation and difficult to verify (paras 4.24-4.26). It acknowledged, however, that there was a strong case in principle for including the future earnings of the sponsored migrant as it is the total household income which determines whether they will be a burden on the state (para 4.20). It then developed three options: benchmarking to levels of pay, such as the national minimum wage, the
“living wage”, the 25th percentile of UK wage distribution and so on; or
benchmarking to the benefits system, that is to the level of income beyond which the family would not be entitled to income-related benefits, including tax credits; or benchmarking to the net fiscal contribution, the point at which more is paid in tax than is consumed in public services, such as health and education, as well as welfare benefits.
8. The “pay approach” was rejected because, although simple to calculate and understand, it did not relate directly to the question asked, nor was there any clear economic basis for selecting one threshold over another (para 5.2, 5.3). Under both
the “benefits” and the “net fiscal” approaches, the lowest possible threshold was
£13,400 a year and the highest was £40,000. Under the “benefits approach”, the
committee’s preferred threshold was £18,600 a year, the point at which the family
would not be entitled to any income-related benefits, including tax credits and housing benefit, assuming a two adult household (because the additional adult increases benefit entitlement) and housing costs of £119 per week (para 5.5). Under
the “net fiscal approach”, the preferred threshold was £25,700 a year, assuming a
one adult household (because only one adult’s income is taken into account) (para
5.6). The Committee therefore recommended that the income threshold be set between £18,600 and £25,700 gross annual income (para 5.7). The Committee also considered two methods of adjusting the income threshold to account for dependent children, the first of which reflected income-related benefits that the family would derive from their dependent children. Based on what was known about recent sponsors of spouse or partner applicants, it was estimated that 45% of them would not be able to meet the £18,600 threshold and 64% would not be able to meet the £25,700 threshold (para 5.18). The Committee emphasised that its recommendation was based solely on economic considerations and not on the wider legal, social or moral issues (para 5.7).
9. The Government’s conclusions were announced in the Home Office’s
Statement of Intent: Family Migration (June, 2012). The Government had decided to adopt the gross annual income threshold of £18,600 for a British citizen or settled person to sponsor a non-EEA fiancé(e), proposed civil partner, spouse, civil partner, or unmarried partner, with an additional £3,800 for the first dependent child and £2,400 for each further child. These would apply at every application stage - for entry clearance or leave to remain, for further leave to remain (after 30 months) and for indefinite leave to remain (after five years) (para 74). The same rules would apply to refugees and people granted humanitarian protection who wished to sponsor a post-flight partner and dependent child or children, because they should not be in a better position than people settled here (para 131). But sponsors in receipt
of specified disability-related benefits or carer’s allowance would continue to be
covered by the old rules (para 75). Caseworkers were to have no discretion or flexibility in respect of the threshold (para 83c). Specified non-employment income, pensions and savings of both parties would be taken into account (para 82), but the previous, current or prospective employment and earnings of migrant partners would not be taken into account at the entry clearance stage (para 83e), although their earnings would be taken into account where or once they were here with permission to work (para 83f). Sponsors or partners must have been earning at the required level for six months in the same employment or for 12 months if they had changed employment (para 83h). Sponsors returning from abroad would have to show that they had earned at the required level while abroad and had a firm, verifiable job offer or signed contract of employment to start work here within three months of their return at the required level (para 83j). Cash savings of both partners of more than £16,000 could be taken into account to make up the shortfall in income multiplied by 2.5 for the probationary period and simply to make up the shortfall at the indefinite leave to remain stage; thus if there was no income, they would need savings of £62,000 in cash at the entry clearance and leave to remain stages, but £34,600 at the indefinite leave to remain stage (para 83l). These savings might have come as a gift from a third party but they must be real resources for the couple to use as they see fit, not a loan or an undertaking to subsidise or support if needed. Promises of support from third parties would not be accepted (para 83m). The detailed requirements and the evidence which would be required were set out in Appendix B.
10. The Statement of Intent also announced that the new rules on family
migration would
“reflect fully the factors which can weigh for and against an
article 8 claim. They will set proportionate requirements that
reflect, as a matter of public policy, the Government’s and Parliament’s view of how individual rights to respect for
private or family life should be qualified in the public interest
to safeguard the economic well-being of the UK …” (para 7)
11. This was fleshed out by a Home Office statement which accompanied the new Immigration Rules on Family and Private Life (HC 194), Grounds of Compatibility with article 8 of the European Convention on Human Rights. This explained that, while the Rules were amended in 2000 to require all Home Office staff to carry out their duties in compliance with the provisions of the Human Rights Act, there had been no substantive change to the family life part of the Rules to reflect any consideration of proportionality under article 8 or to align them with developing case law (para 12). Staff and courts had had to make their own decisions
on an individual basis, which had “led to unpredictability and inconsistency which
are anathema to good administration” (para 11). Hence the purpose of the new rules
was said to be -
“… to fill the policy vacuum by setting out the Secretary of
State’s position on proportionality and to meet the democratic
deficit by seeking Parliament’s agreement to her policy.” (para
19)
12. The Rules themselves would state how the balance should be struck between the public interest and individual rights, taking into account the relevant case law. If the Rules were proportionate, decisions taken in accordance with them, would, other than in exceptional cases, be compatible with article 8 (para 20). The role of the courts should shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the Rules themselves:
“… The starting-point of such a review will be that Parliament
has decided how the balance should be struck. Although
Parliament’s view is subject to review, it should be accorded
the deference due to a democratic legislature. If proportionality has already been demonstrated at a general level, it need not,
and should not, be re-determined in every individual case.”
(para 22)
13. However, it was also said that this approach would not dispense with the
courts’ role in deciding the proportionality of their application in individual cases
(para 24). This change in approach was a reaction to the decision of the House of Lords in Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, but, as we explain below (paras 63-66), appears to have been based upon a misunderstanding of that decision.
14. In addition to these documents, the Government also published a general impact assessment and an equality impact assessment.
15. The aims of the MIR, as consistently stated both in the Statement of Intent and in the Grounds of Compatibility were that “those who choose to establish their family life in the UK … should have the financial wherewithal to be able to support
themselves and their partner without being a burden on the taxpayer. Moreover, the sponsor should bear the financial responsibility of ensuring that the migrant is well
enough supported to be able to integrate and play a full part in British society” (Grounds of Compatibility, para 52). This policy “has a legitimate aim of
safeguarding the economic well-being of the UK and it is considered that there is enough flexibility in the policy to prevent the policy from being a disproportionate
interference with article 8 rights” (para 55).
16. The evidence of Mr Clive Peckover, for the Secretary of State, is that the
MIR “forms part of an overall programme of reform intended to reduce net
migration and restore public confidence in the immigration system” (Witness
Statement 2, para 8). But this was not its primary objective: there is no cap on the number of spouses, partners and would-be partners who can be admitted, provided that the couple can meet the MIR. Nevertheless, it was anticipated that it would lead to a fall in the numbers admitted by this route, which would bring substantial savings in welfare benefits, and to the NHS, education and other public services. 40,500 spouse or partner visas were issued in 2010 and it was estimated that a MIR of £18,600 would, taken with the other proposed reforms, reduce family route visas by approximately 16,100 per year and net migration by 9,000.
The new Rules and Guidance
17. The MIR in the new Rules laid before Parliament reflected those policy choices. In June 2012, the Home Secretary laid before Parliament HC 194, which introduced a new Appendix FM to the Immigration Rules dealing with applications from family members. Unusually, the new Rules were unanimously approved by a positive resolution of the House of Commons. When the Rules were tabled in the House of Lords, a motion of regret was withdrawn and there was no negative resolution. The new Rules came into force on 9 July 2012. They were further amended by CM 8423 which inserted a new Appendix FM-SE dealing with the procedural and evidential requirements and came into force on 20 July 2012.
18. Appendix FM as updated in 2016 begins by stating (para GEN.1.1):
“It sets out the requirements to be met and, in considering
applications under this route, it reflects how, under article 8 of the Human Rights Convention, the balance will be struck between the right to respect for private and family life and the legitimate aims of protecting national security, public safety and the economic wellbeing of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others (and in doing so
also reflects the public interest considerations as set out in Part
5A of the Nationality, Immigration and Asylum Act 2002). It also takes into account the need to safeguard and promote the welfare of children in the UK, in line with the Secretary of
State’s duty under section 55 of the Borders, Citizenship and
Immigration Act 2009.” (italicised words added by Statement
of Changes in Immigration Rules (2012) (Cm 8423))
19. Nevertheless, the Appendix contemplates that the Rules will not cover all the situations in which a person may have a valid claim to enter or remain in the UK as a result of his or her article 8 rights. Paragraphs GEN.1.10 and GEN.1.11 both provide for what is to happen if an applicant does not meet the requirements of the
Appendix “but the decision-maker grants entry clearance or leave to enter or remain
outside the rules on article 8 grounds”.
20. The Rules governing the pre-entry language requirement, which was the
subject of this Court’s decision in R (Bibi) v Secretary of State for the Home
Department [2015] UKSC 68; [2015] 1 WLR 5055, grant an express exemption
where there are “exceptional circumstances” which prevent the applicant from being
able to meet the requirement prior to entry to the UK (paras E-ECP 4.2(c) and E- LTRP 4.2(c)). There is no equivalent exemption, or reference to exceptional circumstances, in the Rules governing the MIR at the entry clearance stage. Given the obligation to respect Convention rights, therefore, there can be no question of
the rules relating to the MIR being a “complete code”.
21. However, there is an exception EX.1 to the MIR and language requirements for applicants for limited or indefinite leave to remain (not leave to enter) as a partner if (a) the applicant has a genuine and subsisting parental relationship with a child under 18 in the UK who is a British citizen or has lived here continuously for seven years and it would not be reasonable to expect the child to leave the UK; or (b) the applicant has a genuine and subsisting relationship with a partner in the UK who 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. “Insurmountable obstacles” is said to mean very
significant difficulties faced by either which could not be overcome or would entail
very serious hardship to either.22. The source of the “exceptional circumstances” requirement where the MIR
is not met is the Immigration Directorate Instruction: Family Migration: Appendix
FM Section 1.0a: Family Life (as a Partner or Parent): 5-year Routes and Appendix
FM Section 1.0b: Family Life (as a Partner or Parent) 10-Year Routes. (We have been supplied with the versions published in August 2015.) Section 14 of the former requires Entry Clearance Officers, where an application does not meet the requirements in the Rules, to consider whether there may be exceptional circumstances which make refusal a breach of article 8 rights, or whether there are compelling compassionate reasons which might justify a grant of entry clearance,
“because refusal would result in unjustifiably harsh consequences for the applicant
or their family”. However, Entry Clearance Officers are not allowed to grant entry
clearance outside the Rules, so an officer who thinks that the case might meet this
“very high threshold” must refer the case to the Referred Casework Unit (“RCU”)
in London.
23. The Instructions go on to state that the Rules themselves reflect the position of the Secretary of State on proportionality and reflect how the balance should be struck between individual rights and the public interest. Only in exceptional circumstances will a decision taken in accordance with the Rules lead to a
disproportionate outcome. This is likely to occur “only rarely”. Section 14.1 of the
2015 Instructions gives an almost identical explanation of “exceptional circumstances” to that given in the December 2012 Instructions current at the time
of the decision of Blake J:
“‘Exceptional’ does not mean ‘unusual’ or ‘unique’. Whilst all
cases are to some extent unique, those unique factors do not and generally render them exceptional. For example, a case is not exceptional just because the criteria set out in the Immigration Rules have been missed by a small margin.
Instead ‘exceptional’ means circumstances in which refusal
would result in unjustifiably harsh consequences for the individual or their family such that refusal of the application would not be proportionate under article 8. The fact that refusal may, for example, result in the continued separation of family members does not of itself constitute exceptional circumstances where the family have chosen to separate themselves. Cases that raise exceptional circumstances to
warrant a grant of entry outside the Rules are likely to be rare.”
24. Decision-makers are also told that the consideration of exceptional circumstances must include consideration of any factors relevant to the best interests
of a child “in the UK”; but that requiring the Rules to be met is likely to lead to a
disproportionately detrimental effect on the best interests of the child in the UK
“only rarely”.
“The key issue is whether there are any factors involving the
child in the UK that can only be alleviated by the presence of the applicant in the UK. Consideration needs to be given to the
effective and material contribution that the applicant’s
presence in the UK would make to safeguarding and promoting the welfare of the child. This contribution needs to be of a significant kind, eg:
Support during a major medical procedure,
particularly if this is unforeseen or likely to lead to a
permanent change in the child’s life.
Prevention of abandonment where there is no other family member in the UK to care for a child. Simply
reducing the time and resource spent on a child’s case by agencies such as children’s services is unlikely to be sufficient. The applicant’s presence in the UK must form part of achieving a durable solution for the child that is in his or her best
interests.”
The Guidance goes on to state that:
“Other means of meeting the child’s best interests … need to
have been considered and ruled out. The normal need for a child to be given genuine and effective care by both parents is reflected in the Immigration Rules and there must be
substantive reasons why the child’s best interests in this regard
can only be met by granting entry clearance outside the Rules.”
So the fact that parents have chosen to travel at different times, or maintained separate life-styles in two countries, will not amount to a degree of separation that
amounts to exceptional circumstances. On the other hand “the impact of natural disaster on the overseas parent’s housing or employment” making it impossible for
the child to “return” to live with him or her “may count”.
25. From 2012 to 2014, only 52 cases were referred to the RCU for consideration
of leave outside the Rules, of which 26 succeeded. In the same period, some 30,000
applications were refused.
26. The guidance quoted above applies to applications from outside the country for entry clearance. Instruction Appendix FM section 1.0b gives guidance on in- country applications for leave to remain outside the Rules. There are differences between the two, but the initial assumption that the Rules cover the ground, so that refusals will only be disproportionate in exceptional circumstances likely to be rare, and the definition of exceptional circumstances, are the same.
The cases before the court
27. The cases before us are samples of some of the situations in which the MIR may cause problems for partners who wish to live together in this country. In only one of them (SS) have there been findings of fact in legal proceedings. The others (MM, AF, AM, and SJ) have been dealt with on the basis of assumed facts.
MM, AF, AM, SJ: the facts and decisions below
28. MM is a 37-year old national of Lebanon. He entered the UK in 2001 and has been granted limited leave to remain in the UK as a refugee until June 2017. He lives with his sister, EM, who has discretionary leave to remain (for the background see EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64; [2009] 1 AC 1198). She has a son, AF, who was aged 16 when these proceedings began and looks to MM as a father figure. In 2010 MM became engaged to a Lebanese woman whom he met in Syria. They spent five months together in Cyprus between September 2012 and January 2013. They were married by proxy in Lebanon in 2013. He is reading for a PhD at the University of Wolverhampton and working with three different agencies as a quality inspector. He earns approximately £15,600 gross per annum. His wife has a BSc in nutrition and is employed in Lebanon as a pharmacist. She speaks fluent English and inquiries indicate that she
would be likely to find skilled employment here. MM’s brother has covenanted to
provide them with £80 per week for five years. Alternatively his father has promised
to remit an equal amount from Lebanon.29. MM and his wife cannot live together in Lebanon because, as a refugee, he has a well-founded fear of persecution there. They cannot live together in this country because they cannot meet the MIR. They have not applied for entry clearance because there is no point in spending the application fee (currently £956) on an application which is bound to fail. There is no other country in which they
have a right to reside. They have met in Cyprus on short term visitors’ visas. MM
claims that their inability to live together in this country is an unjustified interference
with his Article 8 right to respect for his family life.30. AF has been included as an interested party to MM’s claim because of the adverse impact upon him of MM’s difficulties in achieving family unity in this
country. This, he contends, is not only in breach of his Convention rights but also of
the Secretary of State’s duty, in section 55 of the Borders, Citizenship and
Immigration Act 2009 (“the 2009 Act”), to have regard to the need to safeguard and
promote the welfare of children when making decisions which affect them.
31. AM is a British citizen of Pakistani heritage and has lived here since 1972. In 1991 he married a Pakistani woman who lives in Kashmir although the marriage was not formally registered until 2006. They have five children who are British citizens, four of whom have lived in this country since 2001 and the youngest of whom lives with his mother in Kashmir. AM has been out of work since 2006 and is dependent on benefits. His wife was refused leave to enter under the old Rules because of this. He believes that his employment prospects would be improved if his wife were admitted and could look after the children. He also argues that he has relatives who could support them until they become self-sufficient. He complains about the application of the MIR to the parents of children settled here, who are seeking to enter or remain as spouses or partners. (He also complained about the contrast between the Rules governing parents seeking to enter or remain as spouses or partners and those governing parents seeking to enter or remain as lone parents or separated parents having contact with their children, but the Court of Appeal refused him permission to appeal on this ground.)
32. SJ is a British citizen who was born here and is also of Pakistani heritage. She lives with her family in Birmingham, has no qualifications and an intermittent employment history with no prospect of employment at the required level of earnings. In 2012 she married a Pakistani man who lives and works as a civil servant in Pakistan. In 2013 she sponsored his application to come to this country, but following the Court of Appeal decision in 2014 the application was refused on the ground that the MIR and accommodation requirement were not met and there were no exceptional circumstances leading to the grant of entry clearance outside the Rules. She contends that the MIR is not only a violation of her Convention rights under articles 8 and 12 but also that it is indirectly discriminatory against women, and in particular British Asian women, who suffer from significantly lower rates of pay and employment than others.
33. Blake J declined to strike down the Rules introducing the MIR, because they were capable of leading to an article 8 compatible result. Claims of individual violations should be examined in the context of an application where the relevant facts could be established and factors weighed (para 120). These included the best interests of any children involved (para 119). He also rejected the discrimination challenge on the ground that it would be impracticable and inappropriate to introduce different rules for, for example, women sponsors or sponsors living in lower paid regions (para 114). Nevertheless he found that, when applied to the partners of British citizens or of recognised refugees, the combination of more than
one of five features of the Rules was “so onerous in effect as to be an unjustified and
disproportionate interference with a genuine spousal relationship” (para 123). Those
five features were: setting the income level at above £13,400, the lowest threshold identified by the MAC and close to the national minimum wage, then £13,600; requiring savings of £16,000 before they could be used to make up a shortfall; using a 30-month period for forward income projection as opposed to a 12-month period; disregarding credible and reliable undertakings of third party support; and
disregarding the spouse’s own earning capacity during the 30-months after entry
(para 124). While the MIR was rationally connected to a legitimate aim, these features went further than necessary to promote it (para 144). But he declined to
“seek to encapsulate the nuances of this judgment in a formal declaration” (para
154).
34. The Court of Appeal rejected the applicants’ argument that the MIR was not
rationally connected to its legitimate aims: it was enough that the Secretary of State had a rational belief that the policy would overall achieve the identified aim (para 142). The Court went on to hold that, while proportionality had to be judged objectively by the Court, as held by the House of Lords in R (SB) v Governors of
Denbigh High School [2006] UKHL 15; [2007] 1 AC 100, “appropriate weight” had
to be given to the judgment of the Secretary of State, particularly where she had acted on the basis of independent research and wide consultation (para 149). She had shown that the interference was both the minimum necessary and struck a fair balance between the interests of the groups concerned and the community in general.
It was not the courts’ job to impose their own view of the minimum income required
to accomplish the stated policy aim unless the level chosen was irrational or inherently unjust or inherently unfair, which it was not (para 151). Given this
conclusion, it was unnecessary to consider the “exceptional circumstances”
provisions in the Instructions. Both these and the duty to safeguard the welfare of children might be factors in individual cases but were not the basis for a challenge to the Rules themselves (paras 161 and 164).
SS: the facts and the decisions below
35. SS is a citizen of the Democratic Republic of Congo (“DRC”) and resident there. She is married to NT, who is also from the DRC, but was granted refugee status here and later became a naturalised British citizen. They met in 2010 on one
of NT’s visits to the DRC and married in September 2012. In November 2012 SS
applied for entry clearance under Appendix FM. This was refused by the Entry Clearance Officer on the ground that the MIR was not met and the correct documents had not been supplied. She appealed to the First-tier Tribunal. The Tribunal found
that the documentation showed that NT’s gross annual income for the tax year
2011/2012 was £16,194. New information showed that his earnings were roughly £17,000 per annum. This did not meet the MIR, but the appeal was allowed on article 8 grounds. The couple would not be able to live together in the DRC. NT earned well above the minimum wage (amounting to £13,600 per annum). They would be able to live on his income without placing additional strain on the public purse. SS had suffered a miscarriage after her application had been refused which had left her traumatised and deeply distressed that NT was unable to visit her for fear of losing
his employment. She “needed” to be admitted to the United Kingdom “so that she
can take solace with her husband and begin to form family life with him here”. In
reaching this conclusion the Tribunal applied the approach of Blake J in MM
(Lebanon) to assessing the proportionality of the interference.36. The Upper Tribunal dismissed the Entry Clearance Officer’s appeal. It held
that the First-tier Tribunal had been wrong to take into account events since the refusal, but that since there were insurmountable obstacles to family life continuing in the DRC on a permanent basis it followed that there were exceptional circumstances resulting in an unjustifiably harsh situation for the couple. The Court
of Appeal allowed the Entry Clearance Officer’s appeal on the basis that the First-
tier Tribunal had been wrong to apply the reasoning of Blake J in MM (Lebanon), had given inadequate weight to the MIR in the article 8 assessment and too much
weight to the “near-miss” aspect, and had failed to identify valid compelling
circumstances requiring the grant of leave to enter. However, the First-tier
Tribunal’s findings of fact, including that the couple could not live together in DRC,
were not challenged and the case was remitted to the Upper Tribunal.
The case law
37. This Court has considered the inter-relationship between the Human Rights Act 1998 and the Immigration Rules affecting people who apply to join spouses, partners and other family members in the United Kingdom on several occasions, beginning with Huang, above, and most recently in Bibi, above, and Agyarko v Secretary of State for the Home Department, decided at the same time as this case. The starting point is, of course, that any state has the right, in international law, to control the entry of foreigners and how long they may remain after entry. Nevertheless, that right has to be exercised consistently with the obligations of the European Convention on Human Rights. In Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, the European Court of Human Rights held that refusing to admit the foreign spouses of British citizens or persons settled here was not a breach of the article 8 right to respect for family life; there was no general
obligation to respect a married couple’s choice of country to live in; and there were
no obstacles to establishing family life in their own or their husband’s home
countries. However, the refusal did engage article 8 rights sufficiently to bring the case within the article 14 requirement that there be no unjustified discrimination in the enjoyment of those rights; in that case, there was unjustified discrimination on grounds of sex. The majority in that case went so far as to say that there was no lack
of respect for the couples’ family life. Since then, however, the Strasbourg case law
has moved on, and recognised that such refusals do amount to a lack of respect, as this Court held in R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2011] UKSC 45; [2012] 1 AC 621. The Home Secretary clearly accepts this, as she acknowledged in Appendix FM itself that article 8 required a fair balance to be struck between individual rights and the public interest.
38. Nevertheless, the Strasbourg case law has long drawn a distinction between
the expulsion of “settled” migrants with rights of residence in the host country and
the refusal to admit, or the removal of, migrants with no such rights. The former involves an interference with the right to respect for family or private life which has
therefore to be justified under article 8(2), as being “necessary in a democratic
society” in pursuance of a legitimate aim. The context has typically been the
commission of criminal offences by a migrant who has been living lawfully in the host country for a long time, sometimes since birth or early childhood. The Strasbourg case law is discussed in the recent decision of this Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799.
39. In summary, the factors to be taken into account were explained in Boultif v Switzerland (2001) 33 EHRR 1179: the nature and seriousness of the offence; the
length of the applicant’s stay in the host country; the time elapsed since the offence
and his conduct in the meantime; the nationalities of the people concerned; the
applicant’s family situation, such as the length of the marriage and other factors
“expressing the effectiveness” of a couple’s family life; whether the spouse knew of
the offence when entering the relationship; whether there are any children and their
age; and “not least … the seriousness of the difficulties which the spouse is likely to
encounter in the [applicant’s] country of origin, although the mere fact that a spouse
might face certain difficulties cannot in itself exclude an expulsion” (para 48). These
were approved and expanded by the Grand Chamber in Üner v The Netherlands
(2007) 45 EHRR 421, which “emphasised the best interests and well-being of the
children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and the solidity of the social, cultural and family ties with the host country
and with the country of destination” (para 58).
40. Refusing to admit, or removing, migrants with no settled rights of residence involves the potential breach of a positive obligation to afford respect to private or family life by allowing a person to enter or remain in the host country. Technically, therefore, the question is whether the host country has such an obligation rather than whether it can justify interference. Hence, as the Grand Chamber said in the recent
case of Jeunesse v The Netherlands (2015) 60 EHRR 789, “the criteria developed in the court’s case law for assessing whether a withdrawal of a residence permit of a
settled migrant is compatible with article 8 cannot be transposed automatically to
the situation” of an alien seeking admission, even where, as in that case, the
applicant had in fact lived for many years in the host country (para 105). Nevertheless, the court went on to repeat, as had been said in many previous cases dating back at least as far as Gul v Switzerland (1996) 22 EHRR 93, that the
principles applicable to the state’s negative and positive obligations under article 8 were similar: “In both contexts regard must be had to the fair balance that has to be
struck between the competing interests of the individual and of the community as a
whole; and in both contexts the state enjoys a certain margin of appreciation” (para 106; note that the margin has consistently been said to be “certain” rather than “wide”).
41. There is no general obligation to respect a married couple’s choice of country
in which to reside or to authorise family reunification. It will depend upon the particular circumstances of the persons concerned and the general interest. Factors to be taken into account are the extent to which family life would effectively be
ruptured; the extent of the ties in the host country; whether there are “insurmountable obstacles” (or, as it has sometimes been put in other cases, “major impediments”:
see, for example, Tuquabo-Tekle v The Netherlands [2006] 1 FLR 798, para 48; IAA v United Kingdom (2016) 62 EHRR 233, paras 40 and 48) in the way of the family
living in the alien’s home country; and whether there are factors of immigration
control (such a history of breaches of immigration law) or public order weighing in favour of exclusion (para 107). If family life was created at a time when the people involved knew that the immigration status of one of them was such that persistence
of family life in the host state would from the outset be precarious, “it is likely only
to be in exceptional circumstances that the removal of the non-national family
member will constitute a violation of article 8” (para 108; note that this was
expressed as a prediction rather than a requirement). All of this had already been said in the similar family reunification case of Rodrigues da Silva v The Netherlands (2007) 44 EHRR 729. However, since then, the Grand Chamber had decided, in Neulinger v Switzerland (2012) 54 EHRR 1087, that the best interests of any child whose family life was involved had to be taken into account in article 8 cases, and in Nunez v Norway (2014) 58 EHRR 511, this had tipped the balance in an immigration case. In Jeunesse, therefore, the Grand Chamber went on to say:
“Where children are involved, their best interests must be taken
into account. … On this particular point, the Court reiterates
that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children,
their best interests are of paramount importance. … Whilst
alone they cannot be decisive, such interests certainly must be afforded significant weight. Accordingly, national decision- making bodies should, in principle, advert to and assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best
interests of the children directly affected by it.” (para 109)
42. In Jeunesse, the Court found that the circumstances were exceptional and a fair balance had not been struck (para 122). The applicant’s spouse and children
were all Netherlands nationals with the right to enjoy family life together in the Netherlands (para 115). The applicant had been living in the Netherlands for 16 years and had no criminal record. Her presence had been tolerated by the Netherlands authorities (para 116). There were no insurmountable obstacles to the
family relocating to her home country, but the family would experience “a degree
of hardship” if forced to do so (para 117). The authorities had not given sufficient
weight to the interests of the children; the applicant was their mother and primary carer while the father worked full time to support the family and they were deeply rooted in the Netherlands (paras 118-120).
43. The “central issue”, according to the Court, was whether a fair balance had been struck between the personal interests of all members of the family in maintaining their family life in the Netherlands and the public interest in controlling
immigration (para 121). This was nothing new: the Court has referred to striking “a fair balance” between those interests in numerous family reunion cases, with varying
results depending on the individual circumstances: Gul v Switzerland, above, para 38; Ahmut v The Netherlands (1997) 24 EHRR 62, paras 63, 73; Sen v The Netherlands (2003) 36 EHRR 81, para 31; Tuquabo-Tekle v The Netherlands (para 41 above); Konstantinov v The Netherlands [2007] ECHR 1635/03, paras 46, 53; Rodriguez da Silva v The Netherlands, above; Y v Russia (2010) 51 EHRR 531, paras 39, 44; Nunez v Norway, above, para 68; IAA v United Kingdom (2016) 62 EHRR 233, paras 38, 40, 42, 47.
44. However, while the Strasbourg court has not found it necessary to carry out the article 8(2) proportionality analysis in family reunification cases, this Court has adopted that approach in Huang, above, EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] AC 1159, Quila, above, Zoumbas v Secretary of State for the Home Department [2013] UKSC 74; [2013] 1 WLR 3690, and in Bibi, above. As this Court has also held in Hesham Ali v Secretary of State for the Home Department, above, para 49, there is no objection to our employing this useful analytic tool. The issue is always whether the authorities have struck a fair balance between the individual and public interests and the factors identified by
the Strasbourg court have to be taken into account, among them the “significant
weight” which has to be given to the interests of children.
Best interests of children45. There is a further reason in this country for giving significant weight to the
interests of children. This country is party to the United Nations Convention on the
Rights of the Child. As is well known, article 3(1) provides that:
“In all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.”
46. Originally, the United Kingdom had entered a reservation in respect of immigration matters, but this was lifted in 2008 and section 55(1) and (2) of the
2009 Act requires the Secretary of State to “make arrangements for ensuring that”
her own functions in relation to immigration, asylum and nationality, and those conferred upon immigration officers by the Immigration Acts, are discharged
“having regard to the need to safeguard and promote the welfare of children who are
in the United Kingdom”. It is common ground that this duty applies, not only to the
making of decisions in individual cases, but also to the function of making the
Immigration Rules and giving guidance to officials.47. Section 55(3) requires persons exercising those functions to have regard to any guidance given by the Secretary of State in relation to this duty. Statutory guidance has been given in Every Child Matters: Change for Children (2009). In paragraph 1.4:
“Safeguarding and promoting the welfare of children is defined
… as: …
preventing impairment of children’s health or
development (where health means ‘physical or mental health’ and development means ‘physical,
intellectual, emotional, social or behavioural
development’);
ensuring that children are growing up in
circumstances consistent with the provision of safe
and effective care; and
undertaking that role so as to enable those children to have optimum life chances and to enter adulthood
successfully.”
Additionally, although section 55 only applies to children “in the United Kingdom”,
the guidance states that “UK Border Agency staff working overseas must adhere to
the spirit of the duty and make inquiries when they have reason to suspect that a child may be in need of protection or safeguarding, or presents welfare needs that
require attention (para 2.34)”.
48. As already seen, Appendix FM itself purports, in para GEN.1.1, to reflect
both the article 8 rights of the parties and the Secretary of State’s duty under section
55. The Explanatory Memorandum laid before Parliament states that the purpose of
the new rules was to set “requirements which correctly balance the individual’s right
to respect for private and family life with the public interest in safeguarding the
economic well-being of the UK by controlling immigration …” (para 2.1); further that “the assessment of the ‘best interests of the child’ is intrinsic to the
proportionality assessment under article 8, and has therefore also been incorporated
into the Immigration Rules” (para 7.4).
Immigration Rules and policy
49. The legal and policy background of the immigration rules has been discussed in detail by Lord Reed in Hesham Ali and Agyarko. As he explains, the statutory basis for the modern system of immigration control starts from the Immigration Act 1971. Section 1(4) gives authority to the Secretary of State to make rules as to the practice to be followed in the administration of the Act for regulating the entry and stay of persons not having the right of abode. Section 3(2) makes detailed provision for statements of the rules, or changes, to be laid before Parliament.
50. The 1971 Act has been described as a “constitutional landmark”. It is the
modern embodiment of the powers previously exercised under the Royal prerogative, and now entrusted to the Secretary of State, who has constitutional responsibility under Parliament for immigration control and policy. The rules are to
be seen as “statements by the Secretary of State as to how she proposes to control
immigration”, the scope of that duty being defined by the statute (see R (Alvi) v
Secretary of State for the Home Department [2012] UKSC 33; [2012] 1 WLR 2208 paras 31, 33 per Lord Hope).
51. By the HRA section 6 the Secretary of State is bound to exercise her powers under the Act in a way which is compatible with the European Convention on Human Rights. Although some reliance has been placed upon article 12 - the right to marry and found a family - and on article 14 - enjoyment of the Convention rights without discrimination on status grounds - the principal focus in these cases has been on article 8 - the right to respect for private and family life.
Challenging the rules under article 8
52. In this case (unlike Hesham Ali or Agyarko) we are asked to consider the legality of the rules as such, rather than simply their application to individual cases. In both situations, however, it is legitimate to follow the familiar four-stage test adopted in Quila, above, and in Bibi, above.
53. Immigration rules made for legitimate objectives were held disproportionate and therefore unlawful in R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53; [2009] AC 287; and in effect (although the challenge was to two individual decisions) in Quila, above. The former required a person subject to immigration control to obtain a prior certificate of approval to enter a marriage otherwise than in accordance with the rites of the Church of England. The latter sought to deter forced marriages, by requiring both parties to a marriage to be aged 18 (later 21). The latter was seen as a very strong case. As Lord Wilson observed
“the number of unforced marriages which [the scheme] obstructs … vastly exceeds
the number of forced marriages which it deters”, an issue which the Secretary of
State had failed to address:
“On any view it is a sledge-hammer but she has not attempted
to identify the size of the nut. At all events she fails to establish that the interference with the rights of the claimants under article 8 is justified.” (Quila para 58)
54. In the same case (paras 78-79) Lady Hale summarised the reasons for holding
both schemes unlawful, noting in particular the “blanket” character of the
prohibition in each case (a factor also emphasised by the Strasbourg court in respect
of the first scheme: O’Donoghue v United Kingdom (2011) 53 EHRR 1, para 89).
55. In Bibi the court declined to hold unlawful amendments to the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here. The court upheld the rules as a whole as satisfying the requirements of proportionality under article 8, while (with differing degrees of emphasis) expressing concern about the potential operation of the guidance in individual cases. In the leading judgment Lady Hale commented on the difficulties of challenges to the rules as such:
“It may well be possible to show that the application of the rule
in an individual case is incompatible with the Convention rights
of a British partner … It is much harder to show that the rule
itself is inevitably unlawful, whether under the Human Rights
Act 1998 or at common law …” (para 2)
56. As those cases show, rules prepared by the Secretary of State will rarely fail to satisfy the first two tests, which closely resemble conventional Wednesbury principles (see per Laws LJ, SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550; [2014] 1 WLR 998, para 39), while the third and fourth tests generally overlap. In practice the main emphasis is likely to be on the fourth test: do the measures strike a fair balance between the rights of the individual and the interests of the community? Nor is it enough that the rule may lead to infringements of that principle in individual cases. As Lord Hodge said (Bibi, para 69, approving the approach of Aikens LJ in the present case: [2015] 1 WLR 1078, paras 133-134):
“The court would not be entitled to strike down the rule unless
satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or
nearly all cases.”
57. That observation reflects the fact that, as a general rule, it is the decision in an individual case which may be incompatible with the Convention rights, rather than the relevant general rules or policies. That applies also to the Secretary of
State’s duty under section 6 of the Human Rights Act 1998 not to act in a way which
is incompatible with a Convention right. Compliance in an individual case does not necessarily depend on the rules. As Laws LJ has said (Mahad (Ethiopia) v Secretary of State for the Home Department [2008] EWCA Civ 1082; [2009] Imm AR 254, para 39, agreed by Pill and Carnwath LJJ):
“The immigrant’s article 8 rights will (must be) protected by
the Secretary of State and the court whether or not that is done through the medium of the immigration rules. It follows that the rules are not of themselves required to guarantee
compliance with the article.”
58. There would no doubt be a breach of that duty if the rules were to be couched in a form which made non-compliance in individual cases practically inevitable. But that is not the position in the present context. Even features which make compliance more difficult, in particular the insistence that Entry Clearance Officers cannot themselves take decisions outside the rules but must refer them to the RCU in London, are not the product of the rules but of the administrative arrangements. As already explained (para 19 above), the general provisions of the rules envisage a two-stage process, the second involving consideration of the human rights issues outside the rules (appendix FM GEN.1.1 and GEN.1.10-11). Unsurprisingly, therefore, Miss Giovannetti for the Secretary of State accepts in her printed case (para 38) that failure to meet the MIR does not in itself lead to an application for entry clearance being refused, since (in her words):
“The Secretary of State retains a discretion to grant entry
clearance outside the rules in appropriate cases, which must be exercised in accordance with section 6 of the Human Rights
Act 1998.”
Consistently with that approach, when dealing with the appeal in SS (Congo) (para
256), she accepts as “uncontroversial” the appellant’s submission that the requirements of rules “do not absolve decision-makers from carrying out a full
merits based fact-sensitive assessment outside the rules”.
59. This position is reinforced by the nature of the right of appeal against any adverse decision of the Secretary of State, whether made by reference to the rules or the Convention. As was made clear in Huang (paras 6, 17), the structure of the appeal provisions draws a clear distinction between the two. Thus the grounds on which an appeal may be brought (Nationality, Immigration and Asylum Act 2002 section 84(1)) include:
“(a) that the decision is not in accordance with immigration
rules ...
(c) that the decision is unlawful under section 6 of the Human
Rights Act 1998 (c 42) … as being incompatible with the appellant’s Convention rights ...”
Failure to qualify under the rules is not conclusive; rather it is (in Lord Bingham’s
words) -
“… the point at which to begin, not end, consideration of the
claim under article 8. The terms of the rules are relevant to that
consideration, but they are not determinative.” (para 6)
Thus, whatever the defects there may be in the initial decision, it is the duty of the tribunal to ensure that the ultimate disposal of the application is consistent with the Convention.
60. This analysis provides a simple answer to the central issue in the case. It removes any substantial basis for challenging the new rules as such under the HRA. (The treatment of children under section 55 of the 2009 Act raises different issues, to which we shall return.) It follows that such a challenge in the present context must stand or fall under common law principles. The question in short is whether, taking account of the fact that those rules are only one part of the decision-making process, they are in themselves based on a misinterpretation of the 1971 Act, inconsistent with its purposes, or otherwise irrational. Under the HRA the main focus of attention shifts to the instructions issued by the Secretary of State to entry clearance officers for dealing with cases outside the rules (described at paras 20ff above). The question then is whether there is anything in those instructions which unlawfully prevents or
exceptional treatment outside the rules.” (paras 24-25)
103. The only criticism which might be made of this passage is the reliance on the figure of £13,400 adopted as a guide by Blake J (see para 33 above), but not
ultimately upheld by the Court of Appeal. The tribunal’s reliance on that part of
Blake J’s judgment was erroneous, though of course entirely proper at the time.
However, in considering after this long delay whether the error is such as to require remission to the tribunal, fairness requires that that we should also take account of the more recent guidance of the Strasbourg court in Jeunesse. The issue is not
whether there has been a “near miss” from the figure in the rules, but the weight to
be given to any factors weighing against the policy reasons relied on by the Secretary of State to justify an extreme interference with family life. One such factor may be the extent to which the family, while not complying with the MIR, would in practice be a burden on the state. The other Jeunesse factors pointed strongly in favour of the applicants.
104. Taking the factors listed in Jeunesse: family life would effectively be seriously ruptured, because they could spend only short periods of time together; while both spouses originated from the DRC, the sponsor has been here for many years and was naturalised as a citizen here as long ago as 2006; he also has two children who are both British citizens, so his ties to this country are extensive; the First-tier Tribunal has found what are insurmountable obstacles in the way of their living in DRC; there are no factors of immigration control or public order weighing in favour of exclusion. The only factor pointing the other way is the fact that this is
a “post-flight” relationship, formed when there was no guarantee that the applicant
would be admitted, although it began in 2010 before the Rules were changed, and
the sponsor would easily have met the old “adequate maintenance” test.
105. The reason for including refugees and those granted humanitarian protection in the MIR on the same terms as others is that their relationships developed post- flight should not be treated more favourably than the relationships of British citizens and others settled here. But neither should such individuals be treated less favourably. If there were insurmountable obstacles to a non-refugee British citizen
going to live in his partner’s home country, and there were nowhere else for them to
go, it would be necessary to weigh the “precariousness” aspect against the extent to
which the couple would, in fact, be able to support themselves.
106. Even if the tribunal’s adoption of the guide figure of £13,400 was
misdirected, that should not be determinative. In the unusual circumstances of this case, after long delay due to legal arguments which were of no direct concern to the applicants, it would be unfair to subject them to the uncertainties of a rehearing unless there were substantial grounds for thinking that a different result would be reached. That is far from the case. The considerations listed above provide ample support for the conclusion reached by the First-tier Tribunal, and for the view of the Upper Tribunal that any legal errors were not material.
107. It is no doubt desirable that there should be a consistent approach to issues of this kind at tribunal level, but as we have explained there are means to achieve this within the tribunal system. As was said in Mukarkar v Secretary of State for the Home Department [2006] EWCA Civ 1045, para 40 (per Carnwath LJ):
“… It is of the nature of such judgments that different tribunals,
without illegality or irrationality, may reach different
conclusions on the same case … The mere fact that one tribunal
has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error
of law … Nor does it create any precedent, so as to limit the Secretary of State’s right to argue for a more restrictive
approach on a similar case in the future. However, on the facts of the particular case, the decision of the specialist tribunal
should be respected.”
Conclusion
108. We would allow all the appeals to the limited extent indicated above. In
SS(Congo) this has the effect that the decision of the Upper Tribunal will be restored.
109. We would also declare that the rules fail unlawfully to give effect to the duty of the Secretary of State in respect of the welfare of children under section 55 of the 2009 Act. Save to that extent we would dismiss the challenge to the validity of the rules.
110. So far as concerns the instructions, we have indicated those aspects which require revision. However, given the passage of time, including new legislation, it would be wrong for this court to attempt to indicate how those defects should now be corrected. It is preferable to adjourn the question of remedies to allow time for the Secretary of State to consider her position, and to indicate to the appellants and to the court how she proposes to amend the instructions or other guidance to accord with the law as indicated in this judgment. The court will receive written submissions on such proposals, and consider whether a further hearing is necessary.
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