Vema Belao Dulagan, R (on the application of) v The Secretary of State for the Home Department

In an Article 8 judicial review, the court assesses whether the Secretary of State’s decision was lawful and proportionate on the evidence available when it was made. A later pregnancy, unknown to the decision-maker, does not ordinarily undermine that assessment.

Where an applicant cannot meet the partner requirements and there is no evidence of insurmountable obstacles to family life abroad, the absence of exceptional circumstances may justify refusal of leave outside the Immigration Rules. A requirement to seek entry clearance abroad is not disproportionate without evidence of undue hardship, an unduly lengthy process, or other circumstances making temporary separation unjustified.

The applicant, a Philippine national, sought judicial review of the Secretary of State’s refusal, dated 20 May 2014, of leave to remain on human-rights grounds as the partner of a British citizen. The refusal accepted that the relationship was genuine and subsisting, but found that she could not satisfy the partner requirements or show insurmountable obstacles to continuing family life in the Philippines.

Permission was granted after an initial papers refusal. The applicant relied on alleged historic errors in earlier immigration decisions, inadequate anxious scrutiny, a later pregnancy, and the principle in Chikwamba v SSHD [2008] UKHL 40. The central issue was whether the refusal breached Article 8 or was otherwise a decision not open to the Secretary of State.

1. The application for judicial review was refused. The Secretary of State’s decision was open to her on the evidence before her and adequately addressed the relevant matters.

2. The applicant was an overstayer and could not succeed under the partner route. She did not provide the specified material required by the Immigration Rules. More importantly, there was no evidence of insurmountable obstacles to her and her husband living together in the Philippines. Her husband’s British nationality did not establish such an obstacle, particularly as he had been born in Pakistan and had previously lived there.

3. The proportionality assessment also had to reflect section 117B of the Nationality, Immigration and Asylum Act 2002, including the applicant’s overstaying. No exceptional feature justified leave outside the Rules.

4. The alleged historic injustice in the earlier refusals did not assist. Those decisions had not been challenged at the time, alternative remedies had been available, and it was too late to use them as a basis for impugning the present decision. Applying TN (Afghanistan) [2015] UKSC 40, historic injustice did not weigh heavily in the Article 8 assessment.

5. The later pregnancy was irrelevant to the lawfulness of the decision. The Secretary of State did not know of it when deciding the application and the issue was whether her decision, when made, was one open to her.

6. The Tribunal rejected the Chikwamba submission. The applicant had not shown that an entry-clearance application would certainly succeed, that the required documents were available, that the process would cause undue hardship or undue delay, or that either spouse could not live in the Philippines while it was determined.

7. The applicant was ordered to pay the respondent’s reasonable costs, subject to detailed assessment if not agreed. Permission to appeal to the Court of Appeal was formally refused.

Upper Tribunal (Immigration and Asylum Chamber): on judicial review, the Tribunal refused the challenge to the Secretary of State’s refusal of leave to remain dated 20 May 2014. Permission to appeal to the Court of Appeal was refused.