FB (Pakistan) v SSHD

For an application governed by transitional immigration provisions, later changes may permit the decision-maker to take the rules applicable to family and private life into account, even where the application was made earlier. The [2014] EWCA Civ 402 position applied only to decisions in the two-month transitional window before 6 September 2012. Failure to satisfy the Immigration Rules does not end the Article 8 analysis, but a claim outside the Rules requires compelling circumstances. There is little utility in treating that question as a separate preliminary gateway. A tribunal may rely on earlier findings and give brief proportionality reasons where no other relevant matters are raised.

The applicant, a Pakistani national and dependent relative, applied on 7 July 2012 for indefinite leave to remain. The application was refused for failure to meet paragraph 317 and other family and private-life requirements. The First-tier Tribunal upheld the material findings and rejected the Article 8 claim. The Upper Tribunal upheld that determination. The Court of Appeal considered an application for permission to appeal, including whether reliance on the post-application family and private-life Rules and the Gulshan/Nagre approach involved an error of law, and whether the second-appeal criteria were met.

Application for permission to appeal refused. Richards LJ held:

1. The challenge to the First-tier Tribunal’s findings concerning paragraph 317 was hopeless. There was no realistic prospect of establishing irrationality or another error of law, and the point did not meet the second-appeal criteria.
2. The transitional effect of HC194 had been addressed in Edgehill [2014] EWCA Civ 402. The later statement of changes, HC565, meant that the Edgehill position applied only to decisions made between 9 July and 6 September 2012. Following Singh [2015] EWCA Civ 74, the Secretary of State and the tribunal were entitled to take Appendix FM and paragraphs 276ADE–276DH into account in deciding this application, which had been decided in November 2013.
3. The intermediate compelling-circumstances stage associated with Gulshan [2013] UKUT 640 (IAC) and Nagre [2013] EWHC 720 (Admin) had little utility. As explained in R (on the application of MM & Ors) v SSHD [2014] EWCA Civ 985, once the Rules were not satisfied, the decision-maker had to determine whether a further Article 8 claim existed. An Article 8 claim outside the Rules would not succeed without compelling circumstances.
4. The First-tier Tribunal had nevertheless gone on to apply the Razgar approach and find the return decision proportionate. Its reasoning was brief, but that was justified because it relied on findings already made and no other relevant matters had been identified. There was no material error of law.
5. There was no important point of principle or practice and no other compelling reason for a further appeal. The complexity and changing nature of the Rules did not, in the circumstances, satisfy that threshold.

Order: Application refused.

• Court of Appeal (Civil Division) [2015] EWCA Civ 1511: refused permission to appeal, finding no material error of law and no second-appeal ground.
• Upper Tribunal (Immigration and Asylum Chamber): upheld the First-tier Tribunal’s determination and held that its findings could be relied upon in the Article 8 proportionality assessment.
• First-tier Tribunal: upheld the refusal under paragraph 317, found the relevant private-life Rule unmet, and rejected the Article 8 claim.