SM (Georgia), R (on the application off) v Secretary of State for the Home Department

Permission to appeal should be granted where an immigration decision may have failed to conduct the required evaluation of an Article 8 claim outside the Immigration Rules. Failure to satisfy the Rules does not necessarily end the Article 8 inquiry. If the Rules have properly taken account of matters relevant to an independent Article 8 assessment, a grant outside the Rules may have no realistic prospect of success. Whether the decision was sufficiently reasoned remained arguable on the material before the court.

The applicant sought permission to appeal from an Upper Tribunal decision dated 25 September 2014 refusing permission for judicial review. The underlying decision refused her application for leave to remain as the partner of a British national because the Secretary of State was not satisfied that the couple had cohabited in a relationship akin to marriage for the required two years under the Immigration Rules.

The proposed appeal alleged errors in assessing cohabitation, reliance on objective corroborative evidence, and the treatment of the Article 8 claim outside the Immigration Rules. The central issue was whether those grounds were arguable.

1. Permission granted. Lord Justice Floyd held that the threshold for permission to appeal was low. Permission was granted on the Article 8 ground and, because the factual background would need to be examined, also on the first and second grounds.
2. Under the Immigration Rules, an application as a partner required a genuine and subsisting relationship meeting the definition in GEN 1.2. For a person relying on cohabitation, that definition required living together in a relationship akin to marriage or civil partnership for at least two years before the application.
3. The exception concerning insurmountable obstacles to family life continuing outside the United Kingdom applied only where there was a genuine and subsisting relationship with a partner. The same partner definition therefore applied, including the two-year minimum cohabitation requirement.
4. Failure under the Immigration Rules did not necessarily prevent consideration of leave outside them. If the Rules had properly taken account of matters relevant to an independent Article 8 assessment, there would be no hope of success outside them. However, it was arguable that the decision’s treatment of Article 8 fell short of the necessary evaluation and that more reasoning was required for the decision to withstand judicial review.
5. The Upper Tribunal’s more generous reading of the decision might ultimately be correct, but that possibility did not remove arguability at the permission stage. The appeal was directed to be heard by three judges, including at least one judge with immigration expertise.

• Court of Appeal (Civil Division): [2015] EWCA Civ 1223. Permission to appeal was granted on all three proposed grounds.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Hanson refused permission for judicial review after an oral hearing on 25 September 2014.