A good arguable case?

The Court of Appeal's decision in MM came as an extremely unwelcome development for many of the families separated by the governments family migration rules. It may not be the end of the story, but within the detailed judgement is a very interesting development. Blink and you might miss it, but at paragraph 128 Lord Justice Aikens says this: " Nagre does not add anything to the debate, save for the statement that if a particular person is outside the rule then he has to demonstrate, as a preliminary to a consideration outside the rule, that he has an arguable case that there may be good grounds for granting leave to remain outside the rules. I cannot see much utility in imposing this further, intermediary, test. If the applicant cannot satisfy the rule, then there either is or there is not a further Article 8 claim. That will have to be determined by the relevant decision-maker."

This is actually quite a significant statement. The decision in Nagre, by Mr Justice Sales, was adopted by the Upper Tribunal in its subsequent decision of Gulshan, which impressed upon judges of the First Tier Tribunal that before they embark on any assessment of an appellant's rights under article 8, using the tried, tested and well understood principles within Razgar/ Huang, they must first decide if there is a 'good arguable' case for doing so. They must not embark upon a 'free-wheeling' article 8 analysis.

Gulshan became the Home Office's favourite case. Presenting Officers at the tribunal raised it at every opportunity (so beloved is the Home Office's adoption of legal mantras that elevate common words or phrases to absolute truths), and any decision of the First Tier Tribunal that did not have regard to it in allowing an appeal was immediately subject to a further appeal by the Secretary of State. It was a fairly bizarre position, since if you can make out a case that a decision is disproportionate, using the traditional tests, then it surely must be a 'good arguable' case. Why the intermediate test? Why indeed says the Court of Appeal in MM.

This is a helpful finding by the Court of Appeal. As with so many immigration law subjects, the addition of multiple layers of tests and exclusionary criteria serves no real purpose; it simply makes the law unintelligible to any lay individual and increases the danger of error, in Home Office decision making and in judicial determinations.

However there is a sting in the tail. Nagre was not the only case to have regard to a 'good arguable' test. In Scotland we have the decision of the Inner House in MS v. Secretary of State for the Home Department for Judicial Review [2013] CSIH 52 (no link unfortunately, this case seems to have disappeared from the Court of Session website). The jurisdictional peculiarity is that neither Nagre nor MM is binding on Tribunal judges in Scotland. They are extremely persuasive but not binding. The decision of the Inner House in MS is however binding on Tribunal judges in Scotland.

Therefore we have a situation where if a tribunal hearing is being held in England, it would appear the immigration judge can forget about the 'good arguable' case test, but in Scotland they must continue to act as before.

But do they? This is an extremely complex topic, but it is important to remember that both Nagre and MS were judicial review decisions. They were concerned with decisions by officials acting for the Secretary of State. Both cases made the point that officials do not require to embark on a holistic article 8 assessment if there are no good grounds for doing so. This makes administrative sense; from the point of view of the Secretary of State.

Nagre was concerned with establishing that when the Secretary of State said the immigration rules were a complete code, she actually meant the immigration rules and a residual discretion to look outside them. Mr Justice Sales was indeed concerned that in looking outside the rules officials did not become consumed by the need for 'exceptional' circumstances to be shown, but to take a considered approach and review all of the facts.

MS refers frequently and approvingly to the judgement in Nagre, again concluding that a combination of the new immigration rules and a residual discretion was adequate to address article 8. Only when there was a 'good arguable' case to look outside the rules did officials have to do so.

Both cases concerned the judicial review of unappealable decisions of the Secretary of State, and it is important to remember that this is quite different from the appellate jurisdiction of the Immigration Tribunal. When an appeal is lodged against an immigration decision to that tribunal, an appellant has certain statutory grounds of appeal, including that a decision breaches their rights under article 8.

Neither Nagre or MS was concerned with the modification of how a tribunal judge was required to address those grounds of appeal, that does not form part of those decisions. They were both concerned with how a Home Office official comes to a decision. Only Gulshan actually imposes a specific restriction or additional interim test on an Immigration Judge, neither Nagre nor MS can sensibly be read as doing so. The imposition of an interim test in Gulshan derived solely from the decision in Nagre, which has now been disapproved in that sense.

Our conclusion therefore is that MS does not leave Scotland in a different position. It is important to understand what that judgement actually says. It should not result in a difference of approach in England and Scotland at the tribunal. Hopefully we can move away from this cumbersome interim test at the appeal stage.