Indian ‘overstayer’ who married British woman wins human rights appeal over decision to refuse application for leave to remain in UK

A judge in the Court of Session ruled that the Secretary of State for the Home Department failed to properly consider the petitioner’s right to a private and family life under article 8 of the European Convention on Human Rights and the risk to his wife of sexual violence in India.

Lord McEwan heard that the petitioner Roshan Lal, 25, came to the UK in March 2012 on a student visa, which was valid until August 2013.

Having formed a relationship with a British citizen he began to live with her from March 2013 and the couple decided to marry, with a wedding arranged for September 2014 at Grangemouth.

However, the respondent’s officers attended the wedding and detained the Indian citizen as an “overstayer”, but after being released on bail the couple married in November 2014 without objections and have co‑habited ever since.

The petitioner had applied for leave to remain as a spouse, but his application was refused in May 2014 and following further representations which were again refused in October, the decision was certified under section 94 of theNationality, Immigration and Asylum Act 2002.

The refusal decision by the Home Sectretary Theresa May was that the claim did not meet the immigration rules and there were “no exceptional circumstances” applying.

However, it was argued that the certification that that claim was “clearly unfounded” should be reduced, the result of which would be that the matter would go before an immigration judge.

Counsel for the petitioner referred to the 2010 Court of Appeal case of R(AK (Sri Lanka)) v Secretary of State for the Home Department, which compared the test of “clearly unfounded” (section 94) and “(no) realistic prospect of success” (rule 353), and argued that the test under rule 353 for “fresh claims” was a “low hurdle” and the same should apply to the section 94 certification.

The respondent had relied on “insurmountable obstacles” and article 8 outside the rules, but it was submitted that the facts and circumstances were “all in favour” of the petitioner.

Counsel drew the court’s attention to the needs of the mother-in-law and the need for her daughter to care for her.

He also pointed to the travel advice of the Foreign and Commonwealth Office about the risk of sexual assault to women in India.

The respondent had refused these matters and recertified the claim, but the refusal letter contained “several errors in law”, as it had introduced article 3 on an article 8 assessment, which set an “impossibly high hurdle”.

The minister had not considered what the most generous, not perverse, immigration judge would do, but merely followed her own view, it was submitted.

The petitioner was not saying he was “bound to succeed”, only that the proper question should be “was he bound to fail”.

He was only just in breach of the rules and on one side of the balance were the “very strong family interests”, which “outweighed” the State interest in a fair system of immigration control, it was argued.

The judge ruled that the respondent failed to take into account the wife’s responsibilities for her disabled mother and the risk to women in India.

In a written opinion, Lord McEwan said: “On the authorities quoted to me, especially the three recent cases from the Inner House, it is clear that the respondent has not conducted a fair proportionate exercise over article 8 rights outside the rules. In particular she has failed to attach enough importance to the rights of the petitioner’s spouse which on these recent authorities she must do.

“In detail she has not properly considered the close relationship the spouse has to have with her own disabled mother. Were she compelled to go to India that important tie would be broken. If she does not go the new marriage would be artificial especially as the parties wish children.”

The judge observed that while her wish to have treatment for infertility was of course elective and not due to a threat to life and therefore not a compelling factor, the respondent “misdirected herself in law” by looking at the matter under article 3.

“In my opinion, Lord McEwan continued, “it discloses an error in law and amounts to taking into account irrelevant considerations. It thus does not comply with the Wednesbury rules.

“For the same reasons the respondent has failed to take account of two relevant considerations namely the responsibilities for the disabled mother and the risk to females in India…That too I regard as an error in law.”

He added: “Also I do not think that the correct test to apply is whether there is a ‘realistic prospect of success’ under the rules. What has been decided is that the claim is ‘clearly unfounded’, and the certification was made on that basis…From the way the decision has been taken in my view it cannot be said on any reasonable view that the case would be bound to fail before an immigration judge.”