Aliyu & Anor, R (on the application of) v Secretary of State for the Home Department

Where an application for leave to remain falls outside the Immigration Rules, the Secretary of State must consider whether to grant leave outside the Rules by reference to Article 8. There is no prior threshold requiring an arguable case before that duty arises. The nature and extent of the consideration will depend on the circumstances and on how far the Rules have addressed the Article 8 issues. Relevant factors may include childhood arrival, prolonged residence, integration and family life with relatives. Where the case raises arguable grounds, the decision-maker must assess proportionality and whether compelling circumstances would produce unjustifiably harsh consequences. A failure to undertake that consideration is unlawful, subject only to the high threshold that the outcome would inevitably have been the same.

The claimants, Nigerian sisters, entered the United Kingdom as children in 2004 and thereafter lived with their British aunt and grandmother. Their applications for leave to remain based on private and family life were refused in 2013. The Secretary of State applied Appendix FM and paragraph 276ADE of the Immigration Rules. The decision letters did not adequately address whether leave should be granted outside the Rules under Article 8.

The claimants challenged the decisions on three grounds: the application of the post-9 July 2012 Rules, the absence of an independent Article 8 assessment, and the failure to consider residual discretion outside the Rules.

1. The claim succeeded. The decisions of 7 February 2013 and 28 March 2013 were quashed.
2. Under [2014] EWCA Civ 402, reliance on paragraph 276ADE in determining an Article 8 application made before 9 July 2012 was unlawful only if reliance on the new Rule materially affected the decision. The claimants could not have succeeded under the Rules in force before that date. The error was therefore immaterial in their cases.
3. Except in a genuine complete-code situation, the Secretary of State always retains discretion to grant leave outside the Rules. That discretion must be exercised by considering Article 8, including all relevant factors and proportionality. There is no prior arguability threshold. Instead, arguability and the extent to which the Rules address the circumstances affect the depth of reasoning required.
4. Where there are arguable grounds that the Rules do not adequately address the individual circumstances, the decision-maker must consider whether compelling circumstances would make refusal disproportionate by producing unjustifiably harsh consequences. A rigid application of the five-stage approach in R (Razgar) v SSHD was unnecessary; substance, not form, was required.
5. The claimants’ childhood arrival, long residence during formative years, schooling, continued cohabitation with their aunt and the death and absence of their parents raised arguable Article 8 issues. Adult children do not automatically cease to enjoy family life with a parent or person standing in that role: Ghising (Family life – adults – Gurkha policy) and R (Gurung and Others) v SSHD.
6. The covering letter relating to the first claimant merely asserted that her case had been considered exceptionally. It did not engage with her circumstances. The second claimant’s decision contained no consideration of exceptional circumstances. The two decisions could not be read together, particularly as they were made by different officials.
7. Although an unlawful failure to consider discretion may be immaterial where the result would inevitably have been the same, that high threshold was not met. The court could not conclude that both claims would necessarily fail.