Case No: C2/2015/0424
Neutral Citation Number: [2017] EWCA Civ 1949
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL,
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Southern
JR37712014
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28/11/2017
Before:

THE PRESIDENT OF THE QUEEN’S BENCH DIVISION
(SIR BRIAN LEVESON)
LORD JUSTICE McCOMBE 
and
LORD JUSTICE NEWEY 

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Between:

	THE QUEEN (on the application of MILDREA MUDIBO)	Appellant	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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Simon Harding (instructed by Quality Solicitors Orion) for the Appellant
Zane Malik (instructed by the Government Legal Department) for the Respondent

Hearing date: 31 October 2017

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Judgment
Lord Justice McCombe: 
1.	This is an appeal from an order of 15 January 2015 of the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judge Southern) refusing the appellant’s application for permission to apply for judicial review. The appellant sought from the Upper Tribunal permission to review the decision of the respondent of 17 December 2013 which refused to grant her application of 22 June 2012 for leave to remain (“LTR”) in the United Kingdom, made on the basis of her relationship with a British citizen, Mr Rahim Ali (born on 11 May 1968), whom she had married on 12 June 2012. She had made a previous application for LTR as Mr Ali’s partner on 3 September 2010, prior to the marriage, but that had been refused on 29 December 2010.
2.	The application, following the marriage, had been initially refused on 14 February 2013. Judicial review proceedings in respect of that decision followed and by a consent order of 6 September 2013, the respondent agreed to reconsider the application. It was refused again by the decision now under challenge. The judicial review permission application was refused by Simler J after consideration of it on the papers. It was refused again by UTJ Southern who, on 15 January 2015, also refused permission to appeal to this court. It was further refused by Sales LJ in this court after consideration on the papers. Permission to appeal was, however, granted by Gloster LJ on 15 January 2016.
3.	The appellant is a citizen of Tanzania, born on 21 July 1972. She arrived in the United Kingdom on 7 November 2004, with entry clearance as a visitor for 6 months to 7 May 2005. That period expired and she has remained in the country unlawfully since then. 
4.	The appellant says that her relationship with Mr Ali dates from 2007. The medical material adduced indicates that Mr Ali was diagnosed in 2000 as suffering from HIV. It is useful to quote from the two short letters from medical practitioners that were before the respondent when she considered the application. The first letter is from the West London Centre for Sexual Health and is dated 28 July 2010. It states this: 
“This is to certify that Mr. Ali was diagnosed with AIDS in 2000 when he was treated for cerebral toxoplasmosis. He has been on combination antiretroviral therapy since that time. He is currently on tablet Truvada 1 tablet OD and tablet Nevirapine 400 mg OD.
In 2003 he had a fall at work resulting in fractures to his right arm and wrist. Due to poor healing of his scaphoid bone fracture on his right wrist, he has ongoing pain in this area and this has prevented him from employment as it is too painful to use this arm. He also suffers from high blood pressure treated by his GP and low Vitamin D levels.”
The second letter from the same source, dated 21/09/2012, says this: 
“Mr Ali has been known to be HIV seropostive since August 2000 when he presented with an AIDS defining condition cerebral toxoplasmosis, and was extremely immunosuppressed with a CD4 lymphocyte count of 13.  In November 2011 he was showing signs of virological failure with a fall in his CD4 count from previous levels and a rise in his HIV viral load levels. This necessitated a change in his antiretroviral medication.
In April 2002 a biopsy from the anal area showed anal intraepithelial neoplasia grade 1-2 and he remains under monitoring for this.
He is on treatment for high blood pressure.
Physically, Mr Ali’s main problem is longstanding severe back pain following an injury with an x-ray of the lumbar spine confirming degenerative changes and a probable previous compression fracture. In addition, he has had injuries to his right and left hands with previous surgical treatment resulting in reduced function of both hands.
I would hope that the above factors are taken into consideration when deciding on his benefits including incapacity benefit.”
There was a further letter of 12/04/13 from the same doctor. This third letter was sent to the respondent under cover of a letter of 30 April 2013 from the appellant’s solicitors; however, it contained essentially the same medical information. 
5.	This material was considered by the respondent in reaching her decision. As the appellant had no subsisting LTR she was unable to meet the criterion for a grant of LTR in the normal way since (using the same double negative as in the decision letter) she had not been able to show that she had not remained here in breach of immigration laws. 
6.	The respondent then addressed the appellant’s family life under Article 8 of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”), within Appendix FM to the Immigration Rules. Without labouring the labyrinthine provisions of that Appendix unduly, the crucial question for the appellant’s application for LTR was whether she satisfied the criteria EX.1(b) in that Appendix as follows:
“Section EX: Exceptions to certain eligibility requirements for leave to remain as a partner or parent
EX.1 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…and there are insurmountable obstacles to family life with that partner continuing outside the UK. ”
7.	In applying these criteria, the respondent decided that they were not satisfied in the appellant’s case for the following reasons: 
“In your application and supporting documents you have not demonstrated any impediment to lawfully entering and staying in the United Republic of Tanzania or any cultural or religious barriers which would disadvantage your partner for it to be unreasonable to expect you and he to live there.
Consideration has also been given to the fact that your husband suffers from various health problems. According to medical reports, Mr Rahim is HIV positive and receives anteviral medicine to control the disease. He also has high blood pressure, suffers from pain in his wrist and right arm from fractures and has long term back pain. Due to the fractures and back pain, he is unable to work.
However, treatment for your husband’s medical condition(s) is available in Tanzania. Consideration has been give [sic] to the difference in the standard of medical facilities in Tanzania compared with that available here. Whereas it is accepted that the health care systems in the UK and in Tanzania are unlikely to be equivalent, this does not entitle you to remain here and does not constitute an insurmountable obstacle for you and your husband continuing your family life abroad.
Therefore you have not demonstrated any insurmountable obstacles that would prevent you from continuing your family outside the UK.”
8.	The application was further rejected under paragraph 276ADE of the Rules, since, having arrived in the UK aged 32 in November 2004, the appellant could not satisfy the requirement (as a person over 18 years old) that she had been living in this country for less than 20 years, but that she had no social or cultural ties to Tanzania. The respondent was also unwilling to grant leave to remain under a concession in respect of short term carers. 
9.	The Upper Tribunal rejected the appellant’s contentions that the respondent’s decision was arguably unlawful on the basis that she had failed lawfully to consider “the issue of proportionality”: ground 1 of the grounds of claim. A further ground relating to the respondent’s refusal to make an appealable immigration decision does not appear to have been pursued before Judge Southern, no doubt because of the decisions in this court in Daley-Murdock v Secretary of State for the Home Department [2011] EWCA Civ 161 and in the Supreme Court in Patel & Ors v SSHD [2014] AC 651. (In further references in this judgment to the Secretary of State in decided cases, I use the common abbreviation “SSHD”.)
10.	The judge considered that there was no arguable error in the respondent’s consideration of the application of the Rules, notwithstanding the grounds that were advanced based upon Mr Ali’s medical condition. Additionally, the judge found that all the material matters falling for consideration under Article 8 had been considered in the assessment under the Rules and, therefore, even though no express reference was made in the decision letter to the application of Article 8 outside the Rules, all relevant matters had been covered. The fact remained, in the judge’s view, that the decision to marry had been put into effect not merely while the appellant’s immigration status was precarious, but also after an application for leave to remain as a partner had already been refused prior to the marriage. 
11.	In the course of his judgment, however, in setting out the factual background, the judge said that the appellant’s husband had been born in Tanzania, although he was now a British citizen. The judge observed that he would have obtained Tanzanian citizenship by birth in that country; there might be obstacles to him maintaining dual citizenship, but, the judge said, he would deal with the application simply on the basis that Mr Ali had British citizenship alone. The appellant asserts that the judge’s assumption that Mr Ali was born in Tanzania was erroneous; it is said that he had in fact been born in Somalia. There was no evidence on the matter either way.
12.	The appeal to this court was mounted on three grounds, one of which was abandoned by Mr Harding at the hearing before us. The two surviving grounds, as headlined in the Skeleton Argument for the appellant are: first, “Error Regarding the Spouse’s Origins”, and secondly, “The Insurmountable Obstacles Test and N” (viz. N v United Kingdom (Application no. 26565/05) [2008] ECHR 26565/05 in the European Court of Human Rights). I address these grounds in that order.
13.	Mr Harding argued that this assumption as to Mr Ali’s origins told against him on the application before the judge. In paragraph 9 of the written decision refusing the application, the judge said this:  
“At paragraph 41 of the grounds it is said that the respondent erred in failing to consider cultural differences between the UK and Tanzania. But the applicant’s spouse was born in Tanzania and is no stranger to its customs. There is also a complaint that there would be discrimination encountered on return to Tanzania because of religious differences and because of the medical condition of the applicant’s spouse but no real or cogent evidence was put before the respondent in respect of either of those concerns.”
14.	Mr Malik pointed out that the appellant was represented before the judge and it had not been suggested at the hearing that the Mr Ali had originally been a Somali citizen, nor was it mentioned either when the judge said in his oral judgment that the place of birth was Tanzania, or when the statement appeared in the judge’s written reasons. It was, said Mr Malik, for the appellant to make her case and, as the judge noted, the judicial review grounds were silent as to that aspect of his personal history. Mr Malik argued that in any event the judge dealt with the application on the basis that Mr Ali had no citizenship other than British. The result would have been the same if the judge had considered the matter on the basis that Mr Ali was of Somali origin; the judge’s core reasoning would still have applied, namely that there were no truly insurmountable obstacles to the appellant’s family life continuing in Tanzania.
15.	In my judgment, I consider that Mr Malik was correct to say that the real matter in issue was whether it was indeed arguable that the respondent was irrational in her decision that there were not insurmountable obstacles to the appellant’s family life continuing in Tanzania, whatever his original country of birth may have been. 
16.	Mr Malik argued that Mr Ali’s true country of origin was of marginal significance. More important was the fact that a person who has over-stayed his/her leave to enter the country cannot apply for LTR unless he or she meets the test in EX1 of Appendix FM. He argued that the test of “insurmountable obstacles” reflected the Strasbourg case law on the matter: e.g. see Rodrigues da Silva and Hoogkamer v The Netherlands (2007) 44 EHRR 34 at [39] and Jeunesse v The Netherlands (2015) 60 EHRR 17 at [108]. In the Jeunesse case the court had said that, “…another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that persistence of that family life within the host State would from the outset be precarious…” and that, “…where this is the case, 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”. 
17.	In such circumstances, Mr Malik submitted, and I agree, that such error as there may have been as to Mr Ali’s country of origin could have had little bearing upon the real question of the proportionality of the decision to refuse the appellant’s application for LTR. 
18.	I turn, therefore, to Mr Harding’s second and principal ground of appeal.
19.	Mr Harding submitted that it was properly arguable in a judicial review claim that there were truly insurmountable arguments to family life in this case. Mr Ali could not work because of the injury mentioned in the medical material; he would not be able to support himself in Tanzania and “he would be required to leave NHS treatment and engage with limited AIDS treatment provided at an expense in an African country” (to quote, on this latter point, paragraph 41 of the judicial review grounds). He submitted that the stringent test, derived from N v United Kingdom, requiring “exceptional circumstances” before a foreign national could resist removal to his/her country of origin on health grounds, did not apply in the case of a national of the removing state. (He did not refer to the more recent case of Paposhvili v Belgium (Application 41738/10), paragraphs 181-193, which qualifies the test of “exceptional circumstances” to some extent.)
20.	Mr Malik, however, disavowed any reliance in this case upon the decision in N v United Kingdom. He submitted that it was not necessary for him to do so, as the only material considerations in the present case were the provisions of the Immigration Rules and the statutory criteria that are now applicable under s.117A and 117B of the Nationality, Immigration and Asylum Act 2002, as inserted into that Act by s.19 of the Immigration Act 2014. In this respect, we were referred to s.117B (relevant in all Article 8 cases) which provides, in subsections (1), (3), (4) and (5) as follows: 
“117B Article 8: public interest considerations applicable in all cases 
(1) The maintenance of effective immigration controls is in the public interest. …
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons- (a) are not a burden on taxpayers, and (b) are better able to integrate into society.
(4) Little weight should be given to- (a) a private life, or (b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom lawfully.
(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.”
21.	It was argued for the respondent that the appellant’s case on insurmountable obstacles, in the context of a claim to LTR under Article 8, needed to be assessed in the light of these statutory criteria. In this respect, the appellant would not be permitted to work in the UK and must, therefore, be a burden on the state to that extent. Apart from the fairly old medical evidence there was, Mr Malik submitted, no concrete evidence as to Mr Ali’s inability to work; there was no evidence at all from Mr Ali himself on the subject. Mr Malik pointed out that no evidence had been supplied to suggest that the appellant herself would be unable to work in Tanzania. Further, there was no evidence given, in support of the bare assertions in the grounds of claim, as to the position with regard to access to drugs for Mr Ali’s medical condition in Tanzania. In addition, the family life relied upon had been formed while the appellant was in the country unlawfully.
22.	All this has now to be examined in the light of the Supreme Court’s decision in R (Agyarko) v SSHD [2017] UKSC 11, which considered the meaning and application of the “insurmountable obstacles” test in EX.1 to Appendix FM. That case was decided, both in this court and in the Supreme Court, after Judge Southern’s judgment in this case. 
23.	The two cases considered by the Supreme Court in Agyarko also involved claims for judicial review of decisions of the respondent to refuse applications for LTR made on the basis that removal of the applicants from the UK would unlawfully disrupt family life with a British spouse/partner. The cases have distinct resemblances to the present case, although without the element arising out of Mr Ali’s medical problems. In one of the cases, the foreign applicant spouse had certain medical problems, but there were no such issues with regard to the British citizen spouse or partner. The court’s examination of the test arising under EX.1 of Appendix FM, and of related matters, is of materiality here nonetheless.
24.	Lord Reed, with whom the six other members of the court agreed, gave the only judgment. At paragraph 42 he said: 
“Insurmountable obstacles
42. In Jeunesse, the Grand Chamber identified, consistently with earlier judgments of the court, a number of factors to be taken into account in assessing the proportionality under article 8 of the removal of non-settled migrants from a contracting state in which they have family members. Relevant factors were said to include the extent to which family life would effectively be ruptured, the extent of the ties in the contracting state, whether there were “insurmountable obstacles” in the way of the family living in the country of origin of the non-national concerned, and whether there were factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion: para 107.”
He continued at paragraph 43 as follows: 
“43. It appears that the European court intends the words “insurmountable obstacles” to be understood in a practical and realistic sense, rather than as referring solely to obstacles which make it literally impossible for the family to live together in the country of origin of the non-national concerned.”
Lord Reed noted that expressions other than “insurmountable obstacles”, had been used in other cases, but then said this (at the end of paragraphs 43): 
“… “Insurmountable obstacles” is, however, the expression employed by the Grand Chamber; and the court’s application of it indicates that it is a stringent test. In Jeunesse, for example, there were said to be no insurmountable obstacles to the relocation of the family to Suriname, although the children, the eldest of whom was at secondary school, were Dutch nationals who had lived there all their lives, had never visited Suriname, and would experience a degree of hardship if forced to move, and the applicant’s partner was in full-time employment in the Netherlands: see paras 117 and 119.”
25.	Lord Reed’s consideration of the domestic position is to be found at paragraphs 44-45 where he said, 
“44. Domestically, the expression “insurmountable obstacles” appears in paragraph EX.1(b) of Appendix FM to the Rules. As explained in para 15 above, that paragraph applies in cases where an applicant for leave to remain under the partner route is in the UK in breach of immigration laws, and requires that there should be insurmountable obstacles to family life with that partner continuing outside the UK. The expression “insurmountable obstacles” is now defined by paragraph EX.2 as meaning “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.” That definition appears to me to be consistent with the meaning which can be derived from the Strasbourg case law. As explained in para 16 above, paragraph EX.2 was not introduced until after the dates of the decisions in the present cases. Prior to the insertion of that definition, it would nevertheless be reasonable to infer, consistently with the Secretary of State’s statutory duty to act compatibly with Convention rights, that the expression was intended to bear the same meaning in the Rules as in the Strasbourg case law from which it was derived. I would therefore interpret it as bearing the same meaning as is now set out in paragraph EX.2.
45. By virtue of paragraph EX.1(b), “insurmountable obstacles” are treated as a requirement for the grant of leave under the Rules in cases to which that paragraph applies. Accordingly, interpreting the expression in the same sense as in the Strasbourg case law, leave to remain would not normally be granted in cases where an applicant for leave to remain under the partner route was in the UK in breach of immigration laws, unless the applicant or their partner would face very serious difficulties in continuing their family life together outside the UK, which could not be overcome or would entail very serious hardship.”
26.	In view of Mr Malik’s particular emphasis in this case upon the fact of the appellant’s unlawful presence in this country since the expiry of her entry clearance in 2005, it is necessary to note what Lord Reed had to say about family life where the presence of the applicant’s family has been “precarious”. At paragraph 49, he said this: 
“49. In Jeunesse, the Grand Chamber said, consistently with earlier judgments of the court, that an important consideration when assessing the proportionality under article 8 of the removal of non-settled migrants from a contracting state in which they have family members, is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be “precarious”. Where this is the case, the court said, “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.”
Having examined the instructions given to caseworkers in the respondent’s department, who have to consider this issue on a daily basis, his Lordship said this at paragraphs 51 and 52: 
“51. Whether the applicant is in the UK unlawfully, or is entitled to remain in the UK only temporarily, however, the significance of this consideration depends on what the outcome of immigration control might otherwise be. For example, if an applicant would otherwise be automatically deported as a foreign criminal, then the weight of the public interest in his or her removal will generally be very considerable. If, on the other hand, an applicant—even if residing in the UK unlawfully—was otherwise certain to be granted leave to enter, at least if an application were made from outside the UK, then there might be no public interest in his or her removal. The point is illustrated by the decision in Chikwamba v Secretary of State for the Home Department.
52. It is also necessary to bear in mind that the cogency of the public interest in the removal of a person living in the UK unlawfully is liable to diminish—or, looking at the matter from the opposite perspective, the weight to be given to precarious family life is liable to increase—if there is a protracted delay in the enforcement of immigration control. …”
27.	Looking at the question of what amounted to “exceptional circumstances” in which removal of an applicant whose presence was precarious would violate Article 8, Lord Reed considered this issue at paragraphs 54 to 60 of his judgment from which I would extract a few passages which seem to me to be material in this case. At paragraphs 54 and 55 Lord Reed again referred to the Jeunesse decision and said: 
“54. As explained in para 49 above, the European court has said that, in cases concerned with precarious family life, 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. That reflects the weight attached to the contracting states’ right to control their borders, as an attribute of their sovereignty, and the limited weight which is generally attached to family life established in the full knowledge that its continuation in the contracting state is unlawful or precarious. The court has repeatedly acknowledged that “a state is entitled, as a matter or well-established international law, and subject to its Treaty obligations, to control the entry of non-nationals into its territory and their residence there”: Jeunesse, para 100. As the court has made clear, the Convention is not intended to undermine that right by enabling non-nationals to evade immigration control by establishing a family life while present in the host state unlawfully or temporarily, and then presenting it with a fait accompli. On the contrary, “where confronted with a fait accompli the removal of the non-national family member by the authorities would be incompatible with article 8 only in exceptional circumstances”: Jeunesse, para 114.
55. That statement reflects the strength of the claim which will normally be required, if the contracting state’s interest in immigration control is to be outweighed. In the Jeunesse case, for example, the Dutch authorities’ tolerance of the applicant’s unlawful presence in that country for a very prolonged period, during which she developed strong family and social ties there, led the court to conclude that the circumstances were exceptional and that a fair balance had not been struck: paras 121-122. As the court put it, in view of the particular circumstances of the case, it was questionable whether general immigration considerations could be regarded as sufficient justification for refusing the applicant residence in the host state: para 121.”
No argument was mounted in our case, however, on delay in the enforcement of immigration control.
28.	After quoting from the judgment of Lord Dyson MR in MF (Nigeria) v SSHD [2014] 1 WLR 544 at paragraph 42, Lord Reed continued (in paragraphs 56-57 of his judgment) as follows: 
“56. … The reference to exceptional circumstances in the European case law means that, in cases involving precarious family life, “something very compelling… is required to outweigh the public interest”, applying a proportionality test. The Court of Appeal went on to apply that approach to the interpretation of the Rules concerning the deportation of foreign criminals, where the same phrase appears; and their approach was approved by this court, in that context, in Ali.
57. That approach is also appropriate when a court or tribunal is considering whether a refusal of leave to remain is compatible with article 8 in the context of precarious family life. Ultimately, it has to decide whether the refusal is proportionate in the particular case before it, balancing the strength of the public interest in the removal of the person in question against the impact on private and family life. …”
29.	Thus, as ever in Article 8 cases, the question is whether the refusal of LTR in any given case is proportionate, balancing the strength of public interest in immigration control against the impact on family life. The question for us, therefore, is whether the Upper Tribunal was wrong to decide that the respondent’s rejection of the appellant’s application for LTR was not arguably disproportionate, so as to give rise to a properly arguable claim to judicial review of it. I would answer that question in the negative. No arguable legal flaw was demonstrated.
30.	This was a clear case of family life begun and continued while the appellant was in this country unlawfully, with no legitimate reason to expect that her presence would be permitted to continue. Respect must be given to family life and regard had to be had to both members of this family. However, I agree with Mr Malik that, applying the relevant test under the Immigration Rules and in the decided cases in this country and in Strasbourg, this application for permission to apply for judicial review was rightly refused. 
31.	The obstacles to family life, which were said to be insurmountable, were Mr Ali’s inability to work, his inability to support himself in Tanzania and the relative standards of medical care for Mr Ali’s condition here and in Tanzania. It seems to me that the evidence on all these points was tenuous in the extreme. There was no evidence given by Mr Ali at all: he did not explain what work he had been accustomed to, what his skills were and what the real obstacles to employment were for him. There was no evidence from any quarter as to what obstacles there were to support for the couple in Tanzania and no explanation as to what the appellant’s own employment prospects were. The medical evidence was brief and relatively old and nothing was provided to establish a case of lack of necessary medication and/or medical care in Tanzania. As Mr Malik submitted, the claim to “insurmountable obstacles” amounted in reality to mere assertion. In my judgment, therefore, this proposed claim for judicial review had no real chance of success and permission was rightly refused at both stages in the Upper Tribunal.
32.	For these reasons, I would dismiss this appeal. 
Lord Justice Newey:
33.	I agree.
The President of the Queen’s Bench Division (Sir Brian Leveson):
34.	I also agree.