Gurdeep Kaur v Secretary of State for the Home Department

When an Article 8 claim is advanced outside the Immigration Rules, the decision-maker must assess all relevant factors against the public interest and explain the resulting balance. A short decision may suffice where the evidence is limited, but the reasons must show what was weighed and why. Relevant matters may include family relationships, immigration status, nationality, lawful residence, return circumstances and factors increasing the public interest in removal. A mistaken assumption about a partner’s nationality may be material if it affects the feasibility of family life in the country of return. A formal balance sheet is unnecessary, but the assessment must be sufficiently transparent. A defective assessment should be quashed and remitted without pre-judging the outcome.

The appellant’s leave to remain as the spouse of a British citizen was cancelled after the respondent found that she had relied on a fraudulently obtained English-language test certificate. The Upper Tribunal, in a decision promulgated on 14 July 2022, dismissed her appeal, finding both that deception was proved and that removal was compatible with Article 8.

The appeal to the Court of Appeal was limited to the Article 8 claim outside the Immigration Rules. The appellant argued that the Upper Tribunal had failed to carry out a proportionality assessment, omitted material matters and wrongly assumed that her husband was an Indian citizen. The central issue was whether those errors materially undermined the assessment.

1. Disposition. Lord Justice Stuart-Smith gave the leading judgment, with Lord Justices Baker and Holroyde agreeing. The appeal was allowed, the Upper Tribunal’s determination on Article 8 was quashed and that claim was remitted for a fresh determination. The findings that deception was proved and that the alleged social difficulties arising from family disapproval were not established remained undisturbed.
2. Applicable approach. For an Article 8 claim outside the Immigration Rules, the decision-maker must consider whether exceptional circumstances justify leave outside the Rules. Exceptional circumstances mean circumstances in which refusal would cause unjustifiably harsh consequences for the individual or family, making refusal disproportionate; they need not be unusual or unique. All relevant factors raised by the applicant must be weighed against the public interest. The list of relevant factors is not closed and the assessment is fact-sensitive. The court relied on R (Agyarko) v SSHD [2017] UKSC 11 and GM (Sri Lanka) v SSHD [2019] EWCA Civ 1630 as convenient summaries of that approach.
3. National authorities have a real and important, but not unlimited, margin when setting the weight given to relevant factors. The Secretary of State’s policy attracts considerable weight at a general level, including the policy weightings in section 117B of the Nationality, Immigration and Asylum Act 2002. On an appeal on the merits, subject to section 85 of that Act, the assessment should have regard to the relevant facts at the time of the tribunal’s decision.
4. A proportionality assessment may be relatively short where the evidence is limited. However, merely mentioning evidence in an earlier factual review does not demonstrate that it was taken into account. The reasons must show what features were weighed and why the balance favoured one side. A formal balance sheet is not required.
5. The Upper Tribunal was entitled to reject the evidence of family disapproval. It failed, however, to explain the treatment and weight of the IVF evidence, the reasons for finding no significant or insurmountable obstacles, and the weight given to those conclusions. It also failed to address the length and nature of the marriage, the parties’ immigration history and lawful residence, the husband’s naturalisation, the difficulties he might face in India and the public-interest weight of the deception finding.
6. The statement that both spouses were Indian citizens was materially erroneous. The husband held a United Kingdom passport and there was no evidence of dual citizenship. There was therefore no basis for assuming that he could live in India as an Indian citizen. The Court of Appeal rejected the submission that a properly conducted assessment would necessarily have produced the same result and remitted the claim without expressing a view on the ultimate outcome.

1. Court of Appeal (Civil Division): By [2023] EWCA Civ 1353, the appeal was allowed. The Article 8 determination was quashed and remitted to the Upper Tribunal for fresh determination.
2. Upper Tribunal (Immigration and Asylum Chamber): On 14 July 2022, Upper Tribunal Judge Gleeson dismissed the appeal, upholding the deception finding and finding removal compatible with Article 8. On 24 February 2020, the Upper Tribunal had set aside the earlier First-tier Tribunal decision and retained the appeal for a de novo hearing.
3. First-tier Tribunal: On 20 August 2015, the First-tier Tribunal dismissed the appellant’s challenge. Following unsuccessful applications for permission to appeal, judicial review proceedings were issued and permission was later granted on appeal in November 2017.