Chu, R (on the application of) v Secretary of State for the Home Department

Article 8 applications outside the Immigration Rules require an assessment of proportionality, but a separate assessment is unnecessary where the Rules have fully addressed the relevant private and family life issues and there is no good arguable case for leave outside them. The expression “insurmountable reasons” in the Rules is shorthand for that balancing exercise; it is not a literal threshold higher than the test outside the Rules. Transitional provisions determine which Rules govern claims made under the Rules. They do not govern an application that was always made outside the Rules.

The claimant, his partner and their young child sought judicial review of decisions refusing leave to remain outside the Immigration Rules on Article 8 grounds. The Secretary of State had considered Appendix FM and concluded that the family did not satisfy the Rules. The claimant argued that the decision maker had failed to undertake a separate assessment of Article 8 outside the Rules and had applied the wrong transitional Rules. He also argued that the Secretary of State was obliged to issue a removal decision, thereby generating a right of appeal.

1. The court refused to admit late evidence served in breach of directions, since admission would have been unfair and would not assist in determining the lawfulness of the decision.
2. Transitional provisions governed claims made under the Immigration Rules, but not an application always made outside them. Where no transitional provision applied, the Rules in force at the decision date governed, following Odelola v Secretary of State for the Home Department [2009] UKHL 25.
3. Following R v Nagre v Secretary of State for the Home Department [2013] EWHC 720 (Admin), a separate Article 8 assessment was unnecessary where the Rules had fully addressed the relevant issues and there was no good arguable case for leave outside them.
4. “Insurmountable reasons” in Appendix FM meant the proportionality and balancing exercise required by Article 8, not literally impossible obstacles. The decision maker had considered the relevant relocation difficulties and made no error of law.
5. There was no general obligation to issue removal directions. The relevant policy did not apply because the child was aged three or under. The claim was dismissed.
6. The defendant recovered earlier costs, but not the costs of the hearing because no costs schedule had been served.

First-instance judicial review. No appeal or earlier decision is stated in the judgment.