C2/2014/3178 
Neutral Citation Number: [2015] EWCA Civ 1223
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL 
(IMMIGRATION AND ASYLUM CHAMBER) 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Wednesday, 21 October 2015

B e f o r e: 

LORD JUSTICE FLOYD

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Between: 
THE QUEEN ON THE APPLICATION OF SM (GEORGIA) 
 
Applicant 
v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Respondent 
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DAR Transcript of  
WordWave International Limited trading as DTI 
165 Fleet Street  London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)

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Mr D Jones (instructed by Sutovic & Hartigan) appeared on behalf of the Applicant
The Respondent did not appear and was not represented

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J U D G M E N T
1.	LORD JUSTICE FLOYD:  This is an application for permission to appeal from a decision of Upper Tribunal Judge Hanson dated 25 September 2014 in which he refused after an oral hearing to grant permission for judicial review.  The decision under attack was the respondent Secretary of State's decision dated 6 August 2013 refusing the applicant's application for leave to remain as a partner of a British national, Mr M.  
2.	The applicant made her application under appendix FM to the Immigration Rules.  Under those rules it is possible for an applicant to apply for leave to remain as a partner if they are in a genuine and subsisting relationship with a partner.  A "partner" is defined in GEN 1.2 as including: 
"(i) The applicant's spouse; 
 (ii) the applicant's civil partner; 
 (iii) the applicant's fiancé(e) or proposed civil partner; or
 (iv) a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of the application, unless a different meaning of partner applies elsewhere in this appendix."
3.	The date of the application was 19 July 2012.  The essence of the respondent's decision was that under the relevant rules it was not established that the applicant and Mr M had been cohabiting in a relationship akin to marriage for the prescribed period of two years.  It was not therefore necessary for the Secretary of State under the rules to go on to consider whether such relationship as had been established was a genuine and subsisting one.  
4.	The rules also contain an exception where there are insurmountable obstacles to family life continuing outside the United Kingdom.  The decision maker on behalf the Secretary of State pointed out, correctly, that the exception only applied where there is a genuine and subsisting relationship with a partner, and for these purposes the definition of "partner" was the same as under the other rules.  Accordingly, the two year minimum requirement applied, even if one sought to bring oneself within the exception.  There was therefore no direct consideration under the rules of whether there were insurmountable obstacles to family life continuing outside the UK.
5.	The decision maker went on to consider whether exceptionally a case for leave to remain could be made outside the immigration rules.  It was pointed out in bold type in the decision that if the applicant had a fear of persecution or was in fear of her life if she were to return to her country of origin, namely Georgia, then: 
" ... this would constitute an asylum application under Article 3 of the European Convention on Human Rights and also under the terms of paragraph 327(b) of the immigration rules.  This claim should therefore be made at an Asylum Screening Unit.  For further information you may contact ... "
And contact details are given.
6.	There are three grounds of appeal.  The first ground is that the decision that the applicant and Mr M were not cohabiting in a relationship akin to marriage was not one reasonably open to the decision maker.  Secondly, and in a related ground of appeal, it is said that the decision maker effectively imposed a requirement for objective corroborative evidence before the evidence of the complainant and her partner could be believed.  
7.	The third ground is that the decision maker was wrong not to perform an evaluation of the Article 8 claim outside the provisions of the immigration rules.  Mr Jones, who appears on behalf of the applicant on this renewed application, says that given the matters which are not considered under the immigration rules, namely whether the relationship is genuine and subsisting, and what are the obstacles to that family life continuing outside the United Kingdom, it was incumbent on the decision maker to do more than was done here by way of an evaluation of whether there were exceptional circumstances to grant leave to remain outside the rules.  Apart from the suggestion that the applicant should make a separate asylum application, the decision on exceptional circumstances says this:
"It has also been considered whether your application raises or contains any exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights, might warrant consideration by the Secretary of State of a grant of leave to remain in the United Kingdom outside the requirements of the immigration rules.  It has been decided that it does not.  Your application for leave to remain in the United Kingdom is therefore refused."
8.	I was initially surprised by the suggestion that a case which failed to meet whatever criteria had been laid down under the immigration rules could as it were come back to life under the heading of exceptional circumstances, but I have just about been persuaded by Mr Jones that that may be too simplistic a way of looking at it.  If the evaluation under the immigration rules has properly taken into account the matters which would fall for consideration under an independent Article 8 evaluation, then there would be no hope of a successful application outside the rules.  But Mr Jones has persuaded me that it is arguable that the evaluation in the present case fell short of the necessary evaluation under Article 8, and rather more, it may be said, was necessary to be done in the decision itself in order for it to withstand scrutiny on judicial review.  
9.	Upper Tribunal Judge Hanson was prepared to take a more generous view of the decision, which may in the end turn out to be correct, but I remind myself that the threshold for permission to appeal is a low one and in those circumstances I propose to give permission on ground 3.  Because it will be necessary to some extent to go into the factual background, I propose also to give permission on grounds 1 and 2, which it seems to me will not add very significantly to the time taken for the hearing of this appeal.  
10.	The appeal should be heard by three judges, one of whom may be a High Court judge, and the panel should include at least one judge with expertise in immigration law.  The time estimate for the appeal, unless Mr Jones corrects me, will be two hours.