Summary
The Queen on the application of Ganesabalan v Secretary of State for the Home Department
This case concerned a claim for Judicial Review where permission to apply for Judicial Review was granted.
The issue was the lawfulness of a decision of the Home Office to refuse leave to remain in the UK to the applicant, and the 2 stage test for private and family life under Article 8 of the ECHR.
Facts of the case
The Claimant’s solicitors asked the Secretary of State to ‘exceptionally’ consider the application and grant an extension of stay in the UK as the partner of a person present and settled in the UK. The claimant had 9 1/2 years lawfully in the UK, unsuccessfully applied to regularise his stay in the UK and then remained in the UK without leave and made the application relying on Article 8 family life.
The reps submitted that the claimant’s spouse could not reasonably be expected to follow the claimant if he were removed. The claimant could not meet the requirements of the Immigration rules, hence the reliance on the ‘exceptional’ circumstances of his case.
The alleged error of law in the Secretary of State’s refusal was she had not addressed the legally required question as to whether exceptional circumstances justified leave to remain outside of the Immigration rules in order to satisfy Article 8. Only the first stage of the two stage test was addressed, ie within the rules and then discretion outside of the rules.
The Secretary of State contended that in the absence of exceptional circumstances, no second stage arose and nothing further needed to be addressed. In any event, she contended, the decision would ‘inevitably’ have been the same, and reliance was placed on earlier caselaw.
Point of law established by the case
The court found that where a person seeks to rely on private or family life under Article 8 ECHR, and the claim falls at the first stage under the Immigration rules, there is ALWAYS a second stage where the Secretary of State must consider the exercise of discretion outside of the rules, AND she must show that she has done so.
The extent of that consideration depends on the facts of the case.
Where the reasoning is inadequate it is open to the Secretary of State to resist the grant of Judicial Review is she can show that the decision would inevitably have been the same.
Appendix FM and Rule 276ADE relating to family members and private life are NOT a’ complete code’ so far as Article 8 compatibility are concerned, ie the rules are not an exhaustive consideration of Article 8, and the Secretary of State must show they have considered any exceptional circumstances.
On the facts of this particular case, the court was not convinced that the decision would inevitably have been the same. The claim for Judicial Review succeeded, meaning the Secretary of State will have to apply her mind to the circumstances in the case.
How this affects you
It is good to know that when you are making an application based on your Article 8 family and/or private life, that there is a two stage test, both within the rules, and exceptionally outside of the Immigration rules, which the Secretary of State must consider.
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