Another critique of the new Immigration Rules’ codification of Article 8

4 February 2013 by Rosalind English

Izuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) – read judgment

The Upper Tribunal has concluded that new Immigration Rules do not adequately reflect the Secretary of State’s obligations under Article 8 of the ECHR.

This is the second determination of the “fit” between the immigration rules, introduced last year, and the UK’s obligations under Article 8 of the Convention. I covered the Upper Tribunal’s assessment of the rules in MF (Article 8–new rules) Nigeria [2012] UKUT 00393 (IAC) in a previous post and it will be remembered that the Tribunal held there that the new rules fall short of all Article 8 requirements.

Background

The claimant was a Nigerian national who had raised a claim to private and family life under Article 8 of the European Convention on Human Rights as part of a claim for asylum. She had travelled to the UK previously, with periods of overstaying and having obtained employment by using false identity papers. Whist in the UK she met her husband, a dual British/Nigerian citizen and argued that her removal would interfere with her right to family life under Article 8.

The Secretary of State refused her asylum application and gave consideration to her family life claim. This was considered with reference to the new Immigration Rules (HC 194) and also under Article 8. The Secretary of State refused her application, stating that there were no insurmountable obstacles to family life continuing outside the UK.

On appeal, the Immigration Judge considered her claim to family life with reference solely to Article 8. The appeal was allowed on the basis that it would be unreasonable to expect her husband to leave the UK and to travel to Nigeria in order to continue the family life.

The Secretary of State appealed the determination of the Immigration Judge on a number of grounds, principally on the basis that the Judge should have considered the appeal with reference to Appendix FM (Family Members) of the Immigration Rules and that the Judge was wrong to impose a test of ‘reasonableness’ when the Judge ought to have considered whether there were any ‘insurmountable obstacles’ preventing the family life from continuing outside the UK.

The Secretary of State submitted that the new Immigration Rules

provide a clear basis for considering immigration family and private life cases in compliance with Article 8 of the European Convention on Human Rights.

The Upper Tribunal rejected this particular argument in relation to the Rules, but  accepted that the Secretary of State’s decision to turn down the claimant was in accordance with the rules and the applicable policy and is not unlawful.  Her decision was taken in support of a legitimate aim of protecting public order and the rights and freedoms of others, was a  proportionate  and fair balance in all the circumstances and thus a justified interference with Article 8 rights. The Secretary of State’s appeal was therefore upheld.

Reasoning behind the Upper Tribunal’s ruling

The Immigration Rules, as statements of executive policy, cannot override the legal duty imposed by statute (such as the Human Rights Act 1998) or the existing case law of the higher courts and the Upper Tribunal itself. This was established in the earlier decision in MF Nigeria [2012] UKUT 00393 (IAC).

Whilst the Tribunal concluded that Appendix FM does not adequately reflect the obligations placed on Immigration Judges under Article 8 and the established case law, the Immigration Rules will still be taken into account when considering whether the immigration decision is a justified interference with the right to family and/or private life:

the provisions of the rules or other relevant statement of policy may again re-enter the debate but this time as part of the proportionality evaluation. Here the judge will be asking whether the interference was a proportionate means of achieving the legitimate aim in question and a fair balance as to the competing interests…. The weight to be attached to any reason for rejection of the human rights claim indicated by particular provisions of the rules will depend both on the particular facts found by the judge in the case in hand and the extent that the rules themselves reflect criteria approved in the previous case law of the Human Rights Court at Strasbourg and the higher courts in the United Kingdom.

The Tribunal did not accept that the criteria set out in the new rules accord with the criteria  for an Article 8 assessment established by the existing case law. Once such issue was the best interests of any minor resident children, a principle which is not reflected in the provisions of the Appendix FM.

The more the new rules restrict otherwise relevant and weighty considerations from being taken into account, the less regard will be had to them in the assessment of proportionality…’

The Secretary of State submitted that  Parliament’s approval of HC 194 seemed to be an attempt to approximate the rules to a statutory assessment of the balance between competing interests. The Tribunal on the other hand could not accept such an elevation, for several reasons:

1. The Immigration Rules and supplementary instructions are not the product of active debate in Parliament
2. Only the Parliamentary process for primary legislation permits a clause by clause discussion of the measures, with opportunity for amendments and revision.
3. The procedure adopted here provided a weak form of Parliamentary scrutiny
4. There may have been a debate about the new rules in the House of Commons but Commons is not Parliament and it has long been the law that a resolution of the House of Commons is not given supremacy akin to primary legislation by the court

A claimant who relies on Article 8 will by definition have failed to succeed under the rules but may succeed under the law on Article 8 grounds despite the provisions of the rules.  A failure to comply with the rules thus remains the starting point of the Article 8 inquiry and not its conclusion.

For a human rights exception within Appendix FM of the Immigration Rules to apply, the Secretary of State submitted that the claimant must show that there are ‘insurmountable obstacles’ to the family life from continuing outside the UK.  The UT objected to this “one size fits all” approach.  It is not possible to apply one set of criteria, such as whether there are ‘insurmountable obstacles’ to these divergent cases, where the case law indicates that a fact sensitive assessment is necessary.  The House of Lords deprecated the test of exceptional circumstances in  Huang [2007] UKHL 11.

There is no test of insurmountable obstacles under Article 8 of the ECHR:

In our judgment, to reject a claim under Article 8 because the test of insurmountable obstacles is not met as the Secretary of State did at [17] above is to fail to comply with principles of the established law [53].

It was thus “the degree of difficulty the couple face” rather than the ‘surmountability’ of the obstacle that is the focus of judicial assessment but again as a factor rather than a test. So there could be no  presumption that the Rules would normally be conclusive of the Article 8 assessment or that a fact sensitive inquiry is not normally needed. Indeed, the conclusion under the Rules may often have little bearing on the judge’s own assessment of proportionality. The Secretary of State may decide to only grant leave to remain in cases where there would be insurmountable obstacles to the family relocating to any country but the judge is unlikely to give weight to that factor in the proportionality assessment if he or she concludes that the obstacles to relocation are substantial and in the circumstances it would not be reasonable to expect the other family members to relocate there, whether for reasons of nationality, length of residence, the best interest of the child or otherwise. If there is no presumption that the provisions of the rules reflect and apply the balance between the competing considerations, “exceptional circumstances cannot be the test to be applied under the law”.

On the facts of this particular case, the UT took into account that the claimant’s husband held dual British and Nigerian nationality and he had maintained ties with his home country. In those circumstances the UT concluded that although there would be some hardship in relocating to Nigeria, there was nothing to suggest that he would be unable to follow his wife there.  Given the circumstances in which the relationship arose (during the time when the claimant’s immigration status was precarious) the UT concluded that it would not be unreasonable for the husband to have to decide between retaining his residence in the United Kingdom and following his wife to Nigeria for the time being to continue family life there.

In any event, the fact that it may not be reasonable to expect the other family members to relocate does not mean that in every case deportation or removal is disproportionate or not justified.

There were other factors in this case which militated against the claimant being allowed to stay in the UK.  In addition to breaching immigration control she had employed false documents to obtain unlawful employment. She was prosecuted for this conduct. She had maintained strong ties to Nigeria, returning there regularly. The decision under appeal was taken after her application for entry clearance as a spouse had been rejected and when she was seeking to enter the UK from Nigeria. As in the case of Nunez v Norway [2011] ECHR 1047 this combination of factors meant that weighty reasons existed to refuse her entry and justify her removal to Nigeria.

 The strength of the public interest in removal and the weakness of the right to respect for family life established in these circumstances, was such that any properly self-directed judge was bound to conclude that the Secretary of State had justified refusal of admission as a proportionate measure in the interests of prevention of crime and disorder, irrespective of the consequences to claimant and her husband [80]

So, although determined not to be boxed in by the Rules, the Tribunal in effect is declaring that it will make its decisions on the facts before it under what it understands Article 8 to require, and it may well be in some cases that the claimant has not cleared the high hurdles set by the Rules in order to be allowed to stay. A British spouse will still have to establish that it would be unreasonable for him or her to travel outside the EU to continue family life for the purposes of Article 8. It is worth remembering, in all this, that the Strasbourg Court itself has stated that

Article 8 does not entail a general obligation for a State to respect immigrants’ choice of the country of their residence and to authorise family reunion in its territory. (Rodrigues da Silva and Hoogkamer v Netherlands[ 2006] ECHR 86 at [39]

and both national courts and the Strasbourg Court will take a dim view of sham marriages to obtain the benefits of Article 8:  the consideration of whether family life was created at a time when the persons involved were aware of the “precarious” immigration status of one of them. The Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member would constitute a violation of Article 8 (Mitchell v. the United Kingdom (dec.), no. 40447/981998] ECHR 120)

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