Pakistani nationals granted leave to appeal in UK settlement claim after marrying British citizens

A judge ruled that the case raised “an important point of principle or practice” which had not been conclusively resolved in recent case law.

Lord Menzies heard the two conjoined applications for leave to appeal under section 13(4) of the Tribunals, Courts and Enforcement Act 2007 and Rule of Court 41.2.

Joint wedding

The applicants Muhammad Sibtain and Muhammad Hasnain, two brothers who are nationals of Pakistan and who reside there, married two sisters at a joint wedding in Pakistan in April 2009.

Both sisters had come to Britain several years earlier and had obtained UK citizenship before their marriage.

The court was told that there were now children of each applicant’s marriage, who were also British citizens and lived with their mothers in the UK.

In 2013 the applicants applied to the entry clearance officer at Islamabad for settlement in the UK as spouses of the sisters, but their applications were refused.

The applicants appealed against the decision to the First-tier Tribunal, but in March 2014 the FTT dismissed the appeal under the Immigration Rules, it having been accepted that the applicants did not meet the financial requirements of Appendix FM of the Rules as to a gross income of £18,600 per annum or substantial savings.

Family life

However, the FTT judge found that refusal of the appeals would result in a “disproportionate interference” with the right to a family life of each appellant under article 8 of the European Convention on Human Rights, having regard to the best interests of the children and allowed each appeal under Article 8.

The Secretary of State for the Home Department appealed against these decisions and by decisions in September 2014 the Upper Tribunal held that the FTT had erred in law, set aside the decisions and ordered that they should be remade.

Following a hearing February 2015 the Upper Tribunal decided that each applicant’s appeal to the FTT should be dismissed and later refused permission to appeal to the Court of Session.

Leave to appeal

The applicants sought leave to appeal to the Court of Session and a hearing on the application was fixed for March 2016 but it was then agreed that the applications should be continued pending decisions in appeals before the UK Supreme Court.

Rule of Court 41.57(2) provides that permission to appeal will not be granted unless (a) the proposed appeal would raise some important point of principle or practice, or (b) there is some other compelling reason for the court to hear the appeal.

In the original Note of Argument for the applicants it was accepted that the second appeals test was a stringent one, but the reason for this was that the mischief to which was is directed as the repetition of a twice-failed claim.

Under reference to JD (Congo) v SSHD 1 WLR 3273 it was submitted that the test required to be applied flexibly to take account of the particular facts of the case, and one of the important facts was that the applicants were successful before the First-tier Tribunal; they had failed only once, before the Upper Tribunal.

The application was presented under the first limb of the test, namely that it raises an important point of principle or practice. That point is that there is a distinction which cannot be justified between the position of parents and spouses who are applying to remain in the UK be with their family and that of parents and spouses who are applying to enter the UK to join their family.

Applicants applying from within the UK to remain in the UK and who do not meet the financial requirements of Appendix FM of the Immigration Rules may still obtain leave if they meet the test in Ex.1 which provides an exception to Appendix FM, but this exception was not available to applicants applying to enter the UK to join their family.

Under reference to Quila v Secretary of State 1 AC 621 it was submitted that the distinction between a positive obligation to promote family life and the negative obligation to refrain from interference should not generate a different outcome. In assessing proportionality in an Article 8 claim the court should approach the exercise on the basis that in-country applicants and out-of-country applicants should not have a different result.

Important point of principle

In a written opinion, Lord Menzies said: “With some hesitation, I have reached the view that this application does raise an important point of principle or practice that has not been conclusively resolved in the recent case law to which I have referred. I cannot exclude the possibility that the Upper Tribunal would have reached a different conclusion if it had had the benefit of the views of the United Kingdom Supreme Court before it and that it may have erred in law as a result.

“The Upper Tribunal carried out an assessment of proportionality which involved a balancing exercise similar to that carried out by the Upper Tribunal in SS (Congo) which is quoted at paragraph 102 of MM (Lebanon) and which the UK Supreme Court accepted could not be criticised…

“However, that assessment involved considering a basket of factors including the policy of the Secretary of State as set out in the rules and instructions which the UK Supreme Court stated failed unlawfully to give effect to the duty of the Secretary of State in respect of the welfare of children under section 55 of the 2009 Act.”