Esther Ebun Oludoyi & Ors, R (on the application of) v The Secretary of State for the Home Department

There is no preliminary threshold which must be met before an Article 8 claim outside a criterion-based Immigration Rule is considered. The decision-maker must examine whether the evidence identifies a matter not adequately addressed under the Rules which could lead to a successful Article 8 claim. That exercise does not fetter the full Article 8 assessment.

The form of the assessment is fact-sensitive. Where the relevant facts have already been found under the Rules, or the additional matter concerns proportionality, the decision-maker may proceed directly to proportionality rather than repeat every stage of the Razgar approach. A complaint about the weight given to a relevant factor raises no error of law unless the resulting decision is Wednesbury unreasonable.

The Nigerian applicants sought judicial review of decisions refusing leave to remain on Article 8 grounds and of the Secretary of State's failure to issue removal decisions carrying in-country appeal rights.

The case raised a general question about the relationship between criterion-based Immigration Rules and Article 8 outside the Rules following R (Nagre) v SSHD [2013] EWHC 720 (Admin) and R (MM & Others) v SSHD [2014] EWCA Civ 985. The applicants also challenged the assessment of a nurse's private life, the adult children’s claimed loss of ties with Nigeria under paragraph 276ADE(vi), their relationships with British partners, and the refusal to make removal decisions.

1. The judicial review claims were dismissed. There is no prior, intermediate threshold requiring an applicant to establish a good arguable Article 8 case before Article 8 outside a criterion-based Rule is considered. Nagre, Gulshan and Shahzad properly require scrutiny of whether unaddressed evidence could possibly lead to a successful Article 8 claim; they do not qualify or fetter the Article 8 assessment. This accords with paragraph 128 of R (MM & Others) v SSHD [2014] EWCA Civ 985.

2. The decision-maker need not invariably repeat all five stages in R (Razgar) v SSHD (2004) UKHL 27. If the assessment under the Rule has already made the relevant findings about private or family life, or if the further circumstances concern proportionality, it may be permissible to proceed directly to proportionality.

3. The Secretary of State lawfully considered Mrs Oludoyi’s nursing work and its public value. Public value can be relevant, but it will alter the proportionality outcome only rarely and ordinarily requires a very significant contribution. The complaint was in substance about the weight given to a relevant consideration. It disclosed no error of law and the proportionality conclusion was not Wednesbury unreasonable.

4. Christianah and Samuel had not shown that they had lost their ties with Nigeria for paragraph 276ADE(vi). Their lengthy residence there before coming to the United Kingdom, family remaining there, and limited evidence supported that conclusion. The use of a two-year cohabitation criterion to assess whether their relationships constituted family life was erroneous, since cohabitation is not essential. The error was immaterial because the scant evidence could not establish family life in either case. Their relationships could lawfully be treated as part of private life and maintained by alternative means.

5. The Secretary of State was under no duty to issue removal decisions to the overstaying applicants. The relevant policy did not require a decision on the facts, and the applicants had no legal basis to remain while the Secretary of State was entitled to expect voluntary departure.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review of the refusals of Article 8 leave applications and of the failure to issue removal decisions. The claims were dismissed.
• Earlier immigration appeals: The First-tier Tribunal dismissed the human-rights appeals of three family members. Upper Tribunal Judge Storey found no material error of law in a determination promulgated on 18 April 2012. Christianah had not been an appellant in that appeal.