24 Oct 2016, 49 mins ago

In Secretary of State for the Home Department v SS (Congo) and Others, [2015] EWCA Civ 387 the Court of Appeal concluded that, following the Court’s earlier decision in R (on the application of MM (Lebanon)) v SSHD [2014] EWCA Civ 985, there could still be cases where Article 8 ECHR might require that an individual who did not meet the requirements of the Immigration Rules should still be granted leave to enter (LTE).

In MM (Lebanon), Blake J had considered the conformity of the minimum income requirements in the new LTE Rules with Article 8 in considerable detail. He declined to quash the Rules but found that the minimum income requirement of £18,600 gross per annum for a sponsor seeking the admission of a spouse without children was too high, contrasting it with the figure of £13,400pa which had been identified by the Migration Advisory Committee as sufficient to avoid undue burden on public resources. The Court of Appeal overturned Blake J’s decision, finding that in consideration of the proportionality of the Rules, appropriate weight had to be given to the judgment of the Secretary of State, particularly where she had acted on the results of independent research and wide consultations.

All of the cases in SS were leave to enter (LTE) cases concerning the minimum income requirements for sponsors of family members introduced in the 2012 amendments to the Immigration Rules. All had succeeded on the basis of Blake J’s decision in MM (Lebanon). The Court of Appeal in SS found that in all of the cases before it, the Tribunals concerned had erred in law in basing their decisions on the reasoning of Blake J in MM (Lebanon), because of its subsequent quashing by the Court of Appeal. In all of the cases except SS (Congo)itself, the Court of Appeal substituted its own decision, dismissing the applicant’s appeals against the decisions of the Entry Clearance Officer. SS (Congo) was remitted to the Upper Tribunal for fresh consideration in the light of the Court of Appeal’s judgment.

In the course of its decision, the Court of Appeal expanded upon the reasoning in MM (Lebanon) and provided guidance that will need to be taken into account by those making future LTE applications who wish to rely upon Article 8.

The CA in SS (Congo) stated that the practical effect of the reasoning in MM (Lebanon) is that “there will generally be no or only a relatively small gap between the new LTE Rules as promulgated by the Secretary of State and the requirements of Article 8 in individual cases, including those involving sponsors who are British citizens or refugees located in the [UK]”.

However, it noted that the CA in MM left open the possibility that there could still be cases falling outside the LTE Rules where Article 8 might require that LTE be granted by the Secretary of State outside the Rules. The CA in SS found that it is clearly possible to imagine such cases. It then went on to give guidance as to the weight to be given to the Rules when balancing individual interests and the public interest in such cases.

Firstly, it referred back to the Supreme Court’s decision in Huang v SSHD [2007] UKHL 11, in which it had rejected the proposition that LTR or LTE outside the Immigration Rules should only be granted in exceptional cases. Having taken account of cases involving foreign criminals, where the courts had found that “very compelling reasons” would be required to outweigh the public interest in deportation, the CA in SS stated that “compelling circumstances” would need to be identified to support a claim for LTR outside the new Rules in Appendix FM.

Having identified the position in LTR cases, the CA then went on to consider LTE cases. In LTE cases, the obligation on the State is a positive obligation to secure the enjoyment of the rights under Article 8, as opposed to the negative obligation which arises in LTR cases to refrain from violations of Article 8 rights caused by removal. The CA said it would be slow to find an implied positive obligation which would involve imposing significant additional expenditure on the state, as it did not consider to be a matter in which the courts should involve themselves. However, it recognized that in cases involving children, the margin of appreciation available to the state would be narrower than in other cases. However, the CA also said that if family life could be carried on elsewhere , then it was unlikely that an implied obligation could be placed upon the state to grant LTE. It concluded that the same “compelling circumstances” test would apply in LTE cases as in LTR cases but that the state would have a wider margin of appreciation in LTE cases.

The CA also found that the same principles would apply where the applications had failed because of a failure to produce the evidence required under the rules to show that the substantive financial requirements had been met. This means that the same rigorous “compelling circumstances” test would apply to evidence of third party support, since this is not permitted under the rules. It said that “good reason” would be needed to justify why someone should be given more preferential treatment on the admission of evidence than the rules permit.

In conclusion then, the test to be applied is a fairly demanding test, that of “compelling circumstances”, but it as not as demanding as the exceptionality or “very compelling circumstances” test to be applied in precarious family relationship and foreign criminal cases. It will generally be harder to succeed in entry clearance cases based on Article 8 than in cases where the applicants are already in the UK due to the wider margin of appreciation.

The CA was not prepared to attach undue weight to the concept that the relevant section of the rules constituted a “complete code”. It said that the proper approach was first to see whether the applicant satisfied the requirement of the rules and to assess the force of the public interest contained in the rules. If the applicant did not satisfy the rules, then if there was a reasonably arguable case under Article 8 that had not been dealt with by the rules, the individual interests of the applicant should be balanced against the public interest in order to assess whether the refusal to grant LTR or LTE was disproportionate, applying the appropriate test.

Whilst the test imposed on applicants for entry clearance is an onerous one, the case is welcome to the extent that it at least clarifies that in such cases there are certain (compelling) circumstances in which it will be possible to succeed under Article 8 even if the applicant cannot succeed under the Immigration Rules.