Sunassee, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor

Where an application under the Immigration Rules fails, the decision-maker must still address any free-standing Article 8 claim. A separate full proportionality assessment is unnecessary only where the Rules have addressed all relevant private- and family-life considerations and no substantial, unrecognised factors remain. An arguability or exceptional-circumstances formula cannot operate as a procedural filter which prevents consideration of the case in the round. Near-miss compliance with a long-residence rule is relevant but cannot, by itself, justify leave outside the Rules.

The claimant, a Mauritian national, challenged the Upper Tribunal’s refusal of permission to appeal against a First-tier Tribunal decision dismissing his appeal against refusal of leave to remain. The claim relied on private life under Article 8, including nearly ten years’ lawful residence, a wife and a young child in the United Kingdom.

The First-tier Tribunal stated that there were no arguable grounds for leave outside the Rules and that a further proportionality assessment was unnecessary, but also assessed the relevant circumstances and concluded that removal would not be disproportionate. The central issues were whether that approach was unlawful, whether near-miss compliance with the ten-year rule had been ignored, and whether the Upper Tribunal should have granted permission to appeal.

1. Application refused. Permission to apply for judicial review and permission for a second appeal were refused.
2. The correct approach is to consider the Immigration Rules first and, if the claim fails, any free-standing Article 8 claim. A separate full proportionality assessment is unnecessary only where the Rules have fully addressed the relevant issues and no substantial factors remain outside them (paras [33], [43]).
3. An arguability or exceptional-circumstances formula cannot operate as a procedural filter preventing consideration of the case in the round. The First-tier Tribunal’s wording in paragraph 55 misstated the law, but its decision read as a whole showed that it had assessed the relevant circumstances.
4. The tribunal considered the child’s best interests, the family’s ability to relocate, the claimant’s private life, his ties to Mauritius, employment prospects and the public interest reflected in the Rules. The refusal was proportionate.
5. Near-miss compliance with paragraph 276B was relevant but could not alone justify leave outside the Rules. The claimant’s later completion of ten years’ residence did not justify setting aside the original decision (paras [42], [45], [53], [56]).

1. First-tier Tribunal: appeal dismissed on 15 July 2014; permission to appeal refused.
2. Upper Tribunal (Immigration and Asylum Chamber): renewed permission to appeal refused on 19 December 2014.
3. High Court (Administrative Court): judicial review permission and second-appeal permission refused.