The Secretary of State for the Home Department v SS (Congo) & Ors

Where an application for entry clearance under Appendix FM fails the substantive or evidential Immigration Rules, an arguable Article 8 claim outside the Rules must still be considered. The Rules provide important evidence of the public interest and normally attract significant weight.

In the ordinary family-entry case, compelling circumstances must be shown. A near miss, a preference to live in the United Kingdom, or an anticipated future improvement is insufficient by itself. Article 8 positive obligations give the state a wider margin in entry-clearance cases than in leave-to-remain cases. Appeals must be assessed by reference to circumstances at the original decision date. The court also applied the Denton and Hysaj approach to extensions of time.

Six linked immigration matters concerned applications by family members outside the United Kingdom for leave to enter under Appendix FM and Appendix FM-SE. Four appeals challenged First-tier Tribunal decisions allowing appeals against refusals by Entry Clearance Officers; the Upper Tribunal had dismissed the Secretary of State’s appeals.

Two further cases concerned applications for permission to appeal out of time. The tribunals had followed the first-instance reasoning in MM (Lebanon), which had subsequently been reversed by the Court of Appeal in [2014] EWCA Civ 985. The central issues were the proper Article 8 approach, the weight of the Rules and evidential requirements, the significance of near-miss cases, and the late appeals.

1. Four appeals allowed. The First-tier Tribunal decisions had been affected by material errors. They had relied on the reasoning of Blake J in MM (Lebanon), failed to give proper weight to the Immigration Rules, treated near-miss circumstances as carrying excessive weight, and in some cases considered evidence or circumstances arising after the Entry Clearance Officer’s decision.
2. The correct approach is two-stage. First, the decision-maker must determine whether the substantive Rules are satisfied and assess the public interest expressed in them. Secondly, where there is a reasonably arguable Article 8 claim not sufficiently addressed by the Rules, the individual and public interests must be balanced under section 6(1) of the Human Rights Act 1998. The expression complete code adds little to this analysis.
3. For entry clearance based on family life, Article 8 concerns principally the state’s positive obligations. The state has a wider margin of appreciation than in ordinary leave-to-remain cases and Article 8 does not confer a general right to choose the country in which family life is enjoyed. Outside the Rules, compelling circumstances not sufficiently recognised by them must generally be shown. This is less demanding than exceptionality or very compelling circumstances in the special contexts of precarious family life and foreign-criminal deportation.
4. The same approach applies to Appendix FM-SE. Standardised evidential requirements promote equality, predictability and administrative fairness. A near miss is relevant only where other individual interests already give rise to a strong claim based on compelling circumstances. Speculative future compliance ordinarily provides only weak support. Under sections 85 and 85A(2) of the Nationality, Immigration and Asylum Act 2002, the appeal must be assessed by reference to the circumstances at the original decision date.
5. In SS (Congo), the appeal was remitted to the Upper Tribunal. In BM (Afghanistan), BB (Pakistan) and FA (Somalia), the court substituted decisions dismissing the applicants’ appeals against refusal of entry clearance.
6. The applications for extensions of time in AC (Canada) and KG (India) were refused. The three-stage Denton approach, applied to extensions by Hysaj, governed. Workload and the public interest did not justify the delays.

• Court of Appeal (Civil Division): appeals in SS (Congo), BM (Afghanistan), BB (Pakistan) and FA (Somalia) allowed; Upper Tribunal orders set aside. SS (Congo) remitted; the other three appeals dismissed. Applications for permission to appeal out of time in AC (Canada) and KG (India) refused.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the Secretary of State’s appeals against the First-tier Tribunal decisions in the four substantive cases.
• First-tier Tribunal: allowed the applicants’ appeals against Entry Clearance Officer refusals of leave to enter.