Upper Tribunal confirms the legitimacy of the new immigration rules – but questions their completeness

8 November 2012 by Rosalind English

MF (Article 8 – new rules) Nigeria [2012] UKUT 00393(IAC) – read judgment

This tribunal decision is the first to tackle the so-called “codification” of Article 8 considerations in immigration law (see  Adam’s post  on the Home Office’s proposals earlier this year).

Before the new immigration rules were introduced in July,  cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against was in accordance with the immigration rules; (2) second to assess whether the decision was contrary to the appellant’s Article 8 rights. In immigration decisions, there was no doubt that human rights were rooted in primary legislation: s.84(1)(c) and (g) of the Nationality, Immigration and Asylum Act  2002, the “2002 Act”) allows an appeal to be brought against a decision which unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights. In addition to this, there is s.33(2) of the UK Borders Act 2007 which provides, as one of the statutory exceptions  to the automatic deportation regime,  “…where removal of the foreign criminal in pursuance of a deportation order would breach (a) a person’s Convention rights”.

But then there was a move to set out an extensive, codified definition of the Article 8 balancing factors, in order to

unify consideration under the rules and Article 8, by defining the basis on which a person can enter or remain in the UK on the basis of their family or private life. 

The Explanatory Memorandum to the new rules says under the sub-head “Approach to ECHR Article 8″ that:

7.2 The new Immigration Rules will reform the approach taken as a matter of public policy towards ECHR Article 8 – the right to respect for family and private life – in immigration cases. The Immigration Rules will fully reflect the factors which can weigh for or against an Article 8 claim. The rules will set proportionate requirements that reflect the Government’s and Parliament’s view of how individuals’ Article 8 rights should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis. Outside exceptional cases, it will be proportionate under Article 8 for an applicant who fails to meet the requirements of the rules to be removed from the UK.”

The case

This challenge to deportation was brought by an illegal entrant from Nigeria. In 2009 he was convicted of handling stolen goods but prior to this conviction the appellant obtained a certificate of approval to marry and on 28 March 2009 he married SB.  She, like her daughter F,  is a British citizen.  The appellant invoked Article 8, arguing that it would be impossible for his wife and daughter to relocate to Nigeria in order to maintain family life ties with him

The combination of her working commitments, her daughter’s schooling, the need for her to ensure proper care of her mother and father and her and her daughter’s British citizenship, amounted to insurmountable obstacles making that option unreasonable.

The Upper Tribunal upheld the appeal on Article 8 grounds. They were satisfied that it would not be proportionate in 2012 to deport the appellant.

It almost certainly would have been proportionate for her to have done so in earlier years before the appellant’s relationship with F became established, but, as noted earlier, the Secretary of State did not actively pursue the appellant’s deportation earlier which she could have done if his asylum application had been timeously processed.

The new rules

The new immigration rules are supposed to make it clear what requirements should be fulfilled by anyone relying on Article 8 in their claim.

The Tribunal recognised that new rules dealing with deportation are of “signal importance”.

1. they start from the presumption that the Secretary of State’s view is that the person’s deportation is deemed to be conducive to the public good
2. they proceed to identify certain limited categories of person who may nevertheless be entitled to limited leave subject to their meeting stringent requirements
3. they state that for the rest they can only succeed if they can show exceptional circumstances.

However, as a result of the introduction of the new rules, consideration by judges of Article 8 outside the rules must be informed by the greater specificity which they give to the importance the Secretary of State attaches to the public interest. For example, the new rules set out thresholds of criminality by reference to terms of imprisonment so that Article 8 private life claims can only succeed if they not only have certain periods of residence but can also show their criminality has fallen below these thresholds.

In general, the rules operate to enhance judicial understanding of the “public interest” side of the scales.

Whether the new rules do now (at least in some contexts) treat the public interest as a fixity is a matter likely to need  addressing in future cases; for present purposes it will suffice to observe that they certainly do (in most cases) establish an exceptionality threshold for the public interest to be outweighed. [48]

The rules are evidence that the Secretary of State has sought to address the failure of the previous immigration rules to incorporate any consideration of proportionality under Article 8; and they are also an index of the enhanced importance the Secretary of State attaches to the public interest in deportation of foreign criminals.

There is some room for manoeuvre but it is limited. Where the new rules afford some discretion,

judges are obliged to consider whether an appellant can show he meets the relevant requirements [of human rights according to Section 84 of the “2002 Act”] … Where the new rules afford some related discretion, judges are obliged to consider whether that discretion should have been exercised differently (s. 86(3)(6)). However, what judges are doing when they are conducting this exercise is simply applying the rules: the rules are the rules: see paragraph 10 Mahad  [2009] UKSC 16.  The fact that these rules in part refer expressly to Article 8 or to certain Article 8 concepts is incidental.  The fact that as a result of these changes the rules are longer and incorporate some of the vocabulary of Article 8 makes no difference.

But there are problems in applying the rules, as the Tribunal points out. First, they do not cover all cases where Article 8 is invoked in a challenge to a removal order:

 For example, both Part 8 and the new Appendix FM (to which Part 11 on asylum cross-refers) only seek to cover all those seeking to enter or remain as family members through the migration route and this is extended to applicants for asylum or humanitarian protection by Part 11 on Asylum. They do not include all those who seek to stay in the UK on family life grounds.

As far as foreign criminals are concerned, the rules only allow for specified categories of offenders to qualify. Then there are no specific provisions relating to those relying on private life in their application to enter or remain; where a person is seeking to enter or remain as a visitor for private medical treatment in a claim that also raises Article 8, none of the new provisions appear to regulate how the Secretary of State is to assess such a claim.

The trouble is, as the Tribunal identified in this case, the new rules tell us “very little” about the factors the Secretary of State considers should inform the balancing exercise governed by the criterion of “exceptional circumstances”.

For these and other reasons, these rules cannot be construed as providing a complete code for Article 8 claims. However, in calling for more clarity the Upper Tribunal judges were at pains to emphasise that they were not questioning the legitimacy of these rules.  They saw nothing in principle illegitimate about the Secretary of State seeking to make specific provisions within the immigration rules as to how Article 8 claims are to be assessed.  This may be taken as a warning to those preparing judicial review challenges against the new rules based on arguments alleging that reform of this kind is inherently illegitimate.  As far as the Tribunal judges’ own statutory functions are concerned, they could not see how “the mere enterprise” of establishing Article 8-specific rules could be criticised.

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