FBL, R (on the application of) v The Secretary of State for the Home Department

An Article 8 decision must be read fairly and as a whole. The use of “exceptional circumstances” does not, without a defective process of reasoning, show that the Secretary of State has applied an unlawful test of exceptionality. Where the Immigration Rules do not resolve the claim, the decision-maker must consider Article 8 outside the Rules, but a separate full examination is unnecessary if the Rules have addressed all material issues.

Under Borders, Citizenship and Immigration Act 2009, section 55, a child’s best interests are a primary consideration. A rational assessment may conclude that very young children’s interests lie in returning with both parents where there is no evidence of harm or of obstacles to family life continuing abroad. Further submissions constitute a fresh claim only if they create a realistic, rather than fanciful, prospect of success before an immigration judge.

The applicant, a Chinese national without leave, sought to remain with his Chinese partner and their two young children. The partner and children held discretionary leave until July 2015. The Secretary of State refused his family-life and private-life claim under the Immigration Rules and Article 8, decided that his further submissions were not a fresh claim under paragraph 353, and found no exceptional circumstances under paragraph 353B.

In this judicial-review claim, the applicant alleged that the Secretary of State had applied an unlawful exceptionality test, had failed to assess the children’s best interests and proportionality properly, and had irrationally rejected the submissions as a fresh claim without anxious scrutiny.

1. Claim dismissed. The Secretary of State’s decisions refusing leave under Article 8, rejecting the submissions as a fresh claim, and declining to treat removal as inappropriate under paragraph 353B were lawful.

2. The lawful approach to Article 8 was first to consider whether the claimant met the Immigration Rules and then, if not, to consider Article 8 outside them. There was no threshold or intermediary test before the second stage. The necessary extent of the second-stage assessment depended on whether the Rules had already addressed the relevant family-life and private-life issues.

3. The decision letter, though not structurally clear, had to be read as a whole. Its references to “exceptional” circumstances and to the children lacking exceptionally significant cultural ties were lawful shorthand for the proportionality exercise. They did not impose a free-standing test of exceptionality. The letter expressly applied the five-stage Article 8 analysis and considered whether refusal would be proportionate. The later letter also made clear that the Secretary of State had considered whether refusal would produce unjustifiably harsh consequences.

4. The Secretary of State had properly treated the children’s best interests as a primary consideration under section 55 of the Borders, Citizenship and Immigration Act 2009. Read as a whole, the decision concluded that their interests lay in returning to China with both parents as a family unit. Their ages, Chinese nationality, limited external ties, and the absence of evidence of adverse consequences or obstacles to the parents’ reintegration made that conclusion rational. The existing discretionary leave of the mother and children did not make it irrational, since it had been granted when the mother had been treated as a lone parent.

5. The delay of a little over a year in deciding the further submissions did not strengthen the Article 8 claim. It neither established materially deeper ties nor displaced the precarious nature of the applicant’s position, nor showed a dysfunctional immigration system.

6. Paragraph 353B was a rare safety valve. The Secretary of State had considered its specified factors in full, and nothing additional, including the children’s interests, could amount to exceptional circumstances making removal inappropriate.

7. Under paragraph 353, the Secretary of State asked the correct modest question: whether the further submissions created a realistic prospect of success. Her brief fresh-claim reasons were adequate when read with the detailed Article 8 assessment. The applicant’s weak Article 8 case had no realistic prospect of succeeding before an immigration judge, and the decision displayed anxious scrutiny.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review of the Secretary of State’s decisions of 7 July 2014 and August 2014 was dismissed.
• Secretary of State: Refused leave under the Immigration Rules and Article 8, rejected the further submissions under paragraph 353, and found that paragraph 353B did not make removal inappropriate.