Court of Appeal allows appeals concerning the application of the Immigration Rules in SSHD v SS (Congo) and others  EWCA Civ 387. Alan Payne and Claire Palmer represented the Secretary of State for the Home Department.
Alan Payne and Claire Palmer successfully represented the Secretary of State for the Home Department in SSHD v SS(Congo) and others  EWCA Civ 387. Judgment was handed down on 23 April 2015. The case considered the minimum income requirements of spouses in relation to applications for entry clearance or leave to remain under the Immigration Rules.
Following the decision of Blake J in MM (Lebanon) (which was subsequently overturned by the Court of Appeal), a number of appeals against decisions to refuse leave to enter (“LTE”) or leave to remain (“LTR”) had been upheld in the First Tier Tribunal or the Upper Tribunal on the basis of Blake J’s reasoning. The SSHD appealed those decisions.
The Court of Appeal allowed SSHD’s appeal in respect of each of the appeals brought in time. In all cases save one, the Court of Appeal dismissed the underlying appeal by the applicant without remitting it to the Tribunal.
The Court of Appeal confirmed that in light of the amendments to the Immigration Rules there will generally be either no or only a relatively small gap between the new LTE Rules and the requirements of Article 8 in individual cases including where the sponsors are British citizens or refugees located in the UK.
In giving guidance, the Court confirmed that in cases involving precarious family life (i.e. family life which arose when one or both of the parties was present unlawfully in the UK) and foreign criminals, the test is the strict one of exceptionality. That test also applies to LTE cases where someone from the UK marries a foreign national or establishes a family life at a stage when they are contemplating trying to live together in the UK, but when they know their partner does not have the right to come to the UK.
Outside those precarious or foreign criminal cases, the general position is that compelling circumstances need to be identified to support a claim for LTR/LTE outside the Rules. This is a demanding test, reflecting the reasonable relationship between the Rules themselves and the proper outcome of the application of Article 8 in the usual run of cases. When considering the question of whether leave should be granted under Article 8 the Court must give considerable weight to the Secretary of State’s view, as reflected in the Immigration Rules.
The Court of Appeal held that the evidential requirements set out in Appendix FM-SE of the Rules were proportionate and necessary to ensure the prompt and fair application of the substantive Rules. There is therefore a need for compelling or exceptional circumstances in order to grant LTE or LTR, where the evidential rules have not been complied with.
The Court of Appeal made it clear that the fact that by the time of the hearing (or indeed shortly after the application had been submitted) the sponsor was able to establish that he met the requirements of the Rules did not, of itself, amount to a good reason to allow an appeal. The Court stated that it was generally fair that such an applicant should wait until the circumstances had changed rather than attempting to jump the queue by asking for preferential treatment outside the Rules in advance.
The full text of the judgment can be found here: http://www.bailii.org/ew/cases/EWCA/Civ/2015/387.html