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

Family members seeking entry outside the Immigration Rules must generally establish compelling circumstances insufficiently recognised by the Rules. This standard gives significant weight to the public interests reflected in Appendix FM and Appendix FM-SE. A stricter exceptionality standard may apply where family life was established in circumstances of known immigration precariousness. Entry engages positive obligations under Article 8 and attracts a wider margin of appreciation than remaining with established, non-precarious family life. A near miss does not establish compelling circumstances, although it may affect an otherwise strong proportionality claim. The applicable statutory provisions confined entry-clearance appeals to circumstances at the original decision. Applications to extend appeal time follow the three-stage relief-from-sanctions approach. Public authorities receive no special exemption, and awaiting another judgment does not justify missing the deadline.

The Secretary of State challenged tribunal decisions allowing applications by overseas family members to join sponsors in the United Kingdom. SS, a Congolese national, sought to join her husband, a former refugee who had become a British citizen. BM, an Afghan child, and his mother sought to join their British husband and father. BB, a Pakistani national, and FA, a Somali national living in Uganda, sought to join their British husbands. Their applications failed the financial or evidential requirements in Appendix FM and Appendix FM-SE of the Immigration Rules.

The First-tier Tribunal allowed the applicants’ appeals, relying on the first-instance reasoning in R (MM (Lebanon)) v Secretary of State for the Home Department [2013] EWHC 1900 (Admin). The Upper Tribunal upheld those decisions. That reasoning was subsequently reversed on appeal in [2014] EWCA Civ 985. The central questions were the weight due to the new Rules and the circumstances in which Article 8 required entry outside them.

The Secretary of State also sought extensions of time to pursue appeals concerning AC (Canada), an entry-clearance case, and KG (India), a leave-to-remain case. A further permission application concerning NH (Yemen) was withdrawn.

The court allowed all four substantive appeals and refused both applications for extensions of time.

1. The Immigration Rules could lawfully prescribe entitlements narrower than those arising under Article 8. Convention rights could be satisfied through the residual discretion to grant leave outside the Rules, governed by section 6(1) of the Human Rights Act 1998. The Rules nevertheless carried significant weight where they embodied a considered assessment of the public interests relevant to proportionality (paras 10–17).
2. The appellate decision in MM (Lebanon) [2014] EWCA Civ 985 went beyond recognising that residual discretion preserved Convention compliance. It rejected the first-instance assessment that the financial requirements were generally disproportionate or irrational. Tribunals therefore had to give proper weight to those requirements rather than substitute the lower income figure favoured at first instance (paras 23–27).
3. Entry generally engaged positive obligations under Article 8, attracting a wider margin of appreciation than removal affecting established, non-precarious family life. Compelling circumstances insufficiently recognised by the Rules could require entry outside them. This standard was less demanding than strict exceptionality, which could apply where family life was formed in circumstances of known precariousness. Children’s interests were a primary consideration, alongside public resources, family relationships and the possibility of family life elsewhere. Inability reasonably to enjoy family life elsewhere did not alone establish an entitlement to entry (paras 29–41, 67).
4. Decision-makers should first consider the substantive Rules and their public-interest significance. They should then assess any reasonably arguable Article 8 claim not sufficiently addressed at that stage. Describing the Rules as a complete code did not alter that analysis. Compelling circumstances were also required to depart from Appendix FM-SE, whose evidential requirements promoted risk control, consistent treatment and fair administration (paras 43–53).
5. A near miss alone did not establish compelling circumstances. It could affect the balance where substantial Article 8 interests already supported a strong claim. Prospective compliance afforded very weak support. Under the applicable sections 85 and 85A of the Nationality, Immigration and Asylum Act 2002, later evidence and changed circumstances could not be used to secure entry on appeal; the proper course was a fresh application (paras 55–58).
6. The tribunals had materially misapplied those principles. Their orders were set aside. SS’s case was remitted to the Upper Tribunal. In BM, BB and FA, the court substituted decisions dismissing the applicants’ appeals against refusal of entry clearance (paras 65–91).
7. Extensions of appeal time required the three-stage approach in Denton v TH White Ltd [2014] EWCA Civ 906, applied through R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633. The delays were significant or serious, lacked good reason and were unjustified overall. Workload and deliberately awaiting another appeal judgment did not justify them. Public importance and merits did not outweigh compliance and finality in these cases (paras 93–115).

• Court of Appeal: In [2015] EWCA Civ 387 , allowed the Secretary of State’s appeals in SS, BM, BB and FA and set aside the Upper Tribunal’s orders. SS was remitted to the Upper Tribunal. Decisions dismissing the applicants’ appeals were substituted in the other three cases. Extensions of time were refused in AC and KG; the application concerning NH was withdrawn.
• Upper Tribunal: Dismissed the Secretary of State’s appeals in SS on 13 February 2014, BM on 28 April 2014, BB on 8 April 2014 and FA on 26 June 2014. It refused permission to appeal in AC by a decision issued on 9 January 2014 and in KG by a decision issued on 27 May 2014. No neutral citations were supplied.
• First-tier Tribunal: Allowed the entry-clearance appeals in SS, BM, BB and FA. The decisions relied materially on the first-instance reasoning in MM (Lebanon) [2013] EWHC 1900 (Admin) . No neutral citations were supplied.
• Entry Clearance Officers: Refused the applications in SS on 4 January 2013, BM and his mother on 27 February 2013, BB on 15 November 2012 and FA on 27 November 2012, because the financial or evidential requirements were not satisfied.