Ahmed v Secretary of State for the Home Department

Article 8 considerations are ordinarily accommodated within the Immigration Rules and related guidance. A separate assessment outside the Rules is required only where there are good arguable grounds that the framework does not adequately address the claimant’s circumstances. The assessment remains an overall proportionality exercise. No single factor, including a genuine marriage, prior lawful residence, overstaying, precariousness or the absence of insurmountable obstacles, is automatically decisive. Inadvertent overstaying is ordinarily a factor against an applicant. “Insurmountable obstacles” is a relevant factor rather than a freestanding Article 8 test, and focuses on the degree of difficulty in continuing family life abroad. A decision-maker must avoid a mechanical tick-box approach.

The claimant, a Pakistani citizen, sought judicial review of the Secretary of State’s refusal to grant him further leave to remain as the spouse of a settled person. His previous leave had expired in October 2009, and his later application failed the requirements concerning lawful status, compliance with immigration law and an approved English-language certificate.

The Secretary of State considered the claim under Appendix FM and concluded that there were no insurmountable obstacles to family life continuing in Pakistan and no exceptional circumstances warranting leave outside the Rules. The central issues were whether Article 8 required a separate assessment outside the Rules, whether the decision gave proper weight to the genuine marriage, inadvertent overstaying and alleged lack of precariousness, and whether the insurmountable-obstacles assessment was lawful.

1. The application was dismissed. The Secretary of State was not required artificially to repeat an Article 8 assessment outside the Immigration Rules where the Rules and guidance had adequately addressed the relevant family-life and private-life considerations.
2. The two-part approach requires consideration first of the applicable Rules. If the claim fails under them, a further Article 8 assessment is needed where there are good arguable grounds for granting leave outside the Rules. Here no such grounds were shown.
3. The assessment had to be overall and fact-specific. The claimant’s genuine and subsisting marriage was relevant but not decisive. His initial lawful residence placed him in a better position than a person who entered unlawfully, but his approximately two years and eight months of overstaying remained a material factor against him.
4. Inadvertence did not improve the claimant’s position. Responsibility for knowing and complying with the conditions of leave rested with the applicant. Ordinarily, a lengthy overstay could not be neutral or favourable merely because it resulted from forgetfulness.
5. The claimant’s family life was not highly precarious in the sense described in Nagre, but there was some precariousness because he had no guarantee of permanent residence and part of the relationship relied upon was formed while he was unlawfully present.
6. “Insurmountable obstacles” under Appendix FM were a relevant consideration within the proportionality assessment, not a self-contained substitute for Article 8 analysis. The focus was the degree of difficulty in continuing family life abroad. No irrationality or other error of law was established.

The application therefore failed.

This was a first-instance judicial review in the Administrative Court. The judgment does not state any prior appellate decision in the same proceedings.