Singh v The Secretary of State for the Home Department

A transitional provision which expressly preserves earlier Immigration Rules displaces the usual rule that amended Rules apply to pending applications. However, a later Statement of Changes may prospectively alter that position for undecided applications.

For article 8 claims based on private or family life, decision-makers must first apply the relevant Rules. They must then consciously decide whether that consideration has addressed all article 8 issues. A separate full assessment outside the Rules is unnecessary only where the decision-maker records that conclusion. A procedural omission does not justify relief unless there is an arguable substantive breach of article 8.

These conjoined appeals concerned applications for leave to remain based on private or family life. Both applications pre-dated 9 July 2012, when changes to the Immigration Rules introduced Appendix FM and paragraph 276ADE.

Mr Singh’s appeal came from the Upper Tribunal, which had upheld the First-tier Tribunal’s dismissal of his article 8 claim. Ms Khalid appealed from the Administrative Court’s refusal of permission to seek judicial review of a refusal of leave based on her marriage to a British citizen.

The central issues were whether the new Rules could be applied to applications pending before their commencement, following later transitional amendments, and whether article 8 required a separate assessment outside the Rules.

1. Both appeals were dismissed. The implementation provision in HC 194 meant that, between 9 July and 6 September 2012, applications made before 9 July had to be decided under the earlier Rules. It displaced the ordinary pending-application principle in Odelola v Secretary of State for the Home Department [2009] UKHL 25. The court followed Edgehill v Secretary of State for the Home Department [2014] EWCA Civ 402 and declined to follow the inconsistent decision in Haleemudeen v Secretary of State for the Home Department [2014] EWCA Civ 558, which had been decided without reference to the implementation provision.

2. HC 565 inserted paragraph A277C. From 6 September 2012 it authorised the Secretary of State to consider applications, to which the new private-life and family-life provisions did not already apply, in line with those provisions. It therefore changed the position for pending applications prospectively. Both challenged decisions post-dated that change, so the Secretary of State was entitled to apply Appendix FM and paragraph 276ADE. Lady Justice Arden agreed with the result but cautioned against treating the reasoning in Edgehill as resolving the effect of every unconsidered provision of the former Rules.

3. The court affirmed the two-stage approach in Izuazu (Article 8 – new Rules) [2013] UKUT 45 (IAC) and R (Nagre) v Secretary of State for the Home Department [2013] EWHC 7200 (Admin). The Rules must be considered first. The decision-maker must then consider whether every article 8 issue has already been addressed. If so, it is enough to say so; otherwise, the article 8 claim outside the Rules must be determined.

4. Ms Khalid’s decision letter failed to show that the Secretary of State had considered a claim outside the Rules. That procedural failure did not assist her because she had no arguable substantive article 8 claim. Her family life was formed while her immigration position was precarious, and there were no insurmountable obstacles to the couple continuing family life in Pakistan. Mr Singh’s tribunal decisions had in substance carried out a broad proportionality assessment and were not materially affected by references to the new Rules.

• Court of Appeal (Civil Division): Dismissed both appeals.

• Upper Tribunal: In Mr Singh’s case, upheld the First-tier Tribunal’s dismissal of the article 8 claim.

• Administrative Court: In Ms Khalid’s case, refused permission to apply for judicial review, holding that any article 8 claim outside the Rules was bound to fail.