Immigration and Article 8: what did we learn in 2019?

17 January 2020 by

 human rights in immigration
Field House, seat of the Upper Tribunal

Another year passes, with another series of higher court cases on human rights in the immigration context.

As in previous years, the courts in 2019 were particularly concerned with Theresa May’s attempts as Home Secretary to codify the Article 8 proportionality exercise into legislation.  Those changes have had a significant impact on the approach of tribunals to appeals against deportation and removal on grounds of private and family life.  Judges now have to apply a series of prescribed tests under the immigration rules, before going on to consider whether there are exceptional circumstances requiring a grant of leave.

The general principles having already been established by the Supreme Court (see e.g. in Agyarko [2017] UKSC 11, covered by the Blog here, KO (Nigeria) [2018] UKSC 53, covered by the Blog here, and Rhuppiah [2018] UKSC 58, covered by the Blog here), 2019 saw the Court of Appeal flesh out those principles and clarify the relevant legal tests.

So, for your ease of reference, here are 10 things we learnt about human rights in the immigration context in 2019.

1. The approach to Article 8 proportionality is now settled

In GM (Sri Lanka) [2019] EWCA Civ 1630, the Court of Appeal gave a useful summary of the principles to be applied when considering the proportionality of deportation or removal under Article 8 and the Nationality and the Immigration Act 2002 (“NIAA”).

These are that: (i) the legislation and rules must be construed in a way that is consistent with Article 8, (ii) the policy of the rules must be accorded “significant weight”, but there must be a “limited degree of flexibility”, (iii) the test to be applied outside the rules is whether a “fair balance” is struck between competing public and private interests (and not one of exceptionality), (iv) the test is to be applied on the circumstances of the individual case evaluated “in the real world”, (v) there is a need for “real evidence” and (vi) the list of relevant factors is “not closed”, but is in practice “relatively well trodden” and includes personal conduct, social and economic ties and delay.

2. There is no requirement to give “little weight” to family life formed while immigration status was “precarious

Also in GM (Sri Lanka), the Court of Appeal considered the approach under s117B of the Nationality, Immigration and Asylum Act 2002, which requires little weight to be given to private life while an applicant’s immigration status is precarious or to family life while they are in the UK unlawfully. 

The Court clarified that this did not mean that little weight should be given to family life created during a precarious, but lawful, residence (e.g. where members of the family had temporary leave).  The First-tier Tribunal had erred in doing so and had also failed to take into account the husband’s knowledge that his immigration status placed him on a “pathway to settlement” or to treat the children’s interests in that context as “paramount”. 

3. An “insurmountable obstacle” to return does not mean an inability to return

In CL (India) [2019] EWCA Civ 1925, the Court suggested a three-stage approach to the insurmountable obstacles test under the Immigration Rules: (i) whether the alleged obstacle to continuing family life outside the UK amounts to a very significant difficulty, (ii) if so, whether the difficulty is one which would make it impossible for the applicant and their partner to continue family life together outside the UK and, (iii) if not, whether, taking account of any steps which could reasonably be taken to avoid or mitigate the difficulty, it would nevertheless entail very serious hardship for the applicant or their partner (or both) – [35] to [36].

4. Sensitivity to heat can be an “insurmountable obstacle” to return

Also in CL (India), the First-tier Tribunal had found that the appellant’s British husband faced insurmountable obstacles to returning with her to India because of his age and sensitivity to hot weather.  The Upper Tribunal disagreed, holding that difficulty in coping with heat cannot entail serious hardship “in a country where there is air conditioning and available urban environments built to protect people against the heat”.

The Court of Appeal held that both Tribunals had erred.  While sensitivity to heat could constitute an insurmountable obstacle to return, all relevant factors would need to be considered on the evidence, such as the different areas of India they could live in, the average temperature across the year, the practicability of moving to a different area for part of the year and whether appliances such as air conditioning would in fact be available.

5. In medical cases, Article 8 is not the same as Article 3

In PF (Nigeria) [2019] EWCA Civ 1139, Hickinbottom LJ criticised the tendency of immigration judges to amalgamate the tests for Article 3 and Article 8 in medical cases.

The tests are distinct in their nature – a claim failing in Article 3 cannot succeed under Article 8 unless there is some additional factor that specifically engages private life or the ability to form and enjoy relationships.  The judge had in effect treated the Article 8 claim as the same as an Article 3 claim, but with a lower threshold, and failed to focus on the effect of the appellant’s illness (sickle cell anaemia) on his children.  The fact that their father will suffer more frequent or more serious crises or that the children will, at some stage, have to face his death abroad fell “far short of being unduly harsh, let alone a very compelling circumstance”. 

Meanwhile, in December 2019 the Supreme Court heard the appeal in AM (Zimbabwe) as to whether the test in Article 3 medical cases should be relaxed following the Strasbourg Court’s decision in Paposhvili v Belgium [2017] Imm AR 867.  We covered the Court of Appeal’s decision here. The Supreme Court’s judgment is awaited.

6. Deportation of foreign criminals is about deterrence, not just risk

In MS (Philippines) [2019] UKUT 122 IAC, the Upper Tribunal considered s117(2) of the NIAA: “The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.”  The Tribunal found that Parliament intended the seriousness of the offence to be the “touchstone” for assessing how strong the public interest is in a deportation.  The Tribunal should not solely focus on assessing whether the appellant poses a risk to society, but should also consider aspects such as the deterrent effect of deporting serious criminals. See also Akinyemi [2019] EWCA Civ 2098, where the Court of Appeal clarified that the “public interest in the deportation of foreign criminals has a moveable rather than fixed quality” and requires flexibility when assessing the facts of any case [39].

7. A “persistent offender” is unlikely to be rehabilitated in a matter of months

In Binbuga [2019] EWCA Civ 551, the Court of Appeal considered the meaning of the phrase “persistent offender” for determining whether a person is a “foreign criminal” liable to deportation under s117C and D of the NIAA.  The appellant had committed a burglary and a series of less serious offences as a teenager and young adult.  The Tribunal had held that he was no longer a “persistent offender” because he had not committed any offences for over two years and there was evidence he had been rehabilitated.

The Court of Appeal disagreed.  The Tribunal had focused unduly on the current position rather than the overall picture.  A persistent offender is someone who “keeps on breaking the law” (Chege [2016] Imm AR 833) and an individual may be so regarded even though “he may not have offended for some time”.  The Tribunal also wrongly focused on the length of time since the appellant had last offended, even though for a significant part of that period he had been in prison and the remainder on licence and under the threat of deportation.  Rehabilitation could be relevant, but usually only where it is established “over a significant period of time” [46]. 

8. Being in prison or a member of a criminal gang does not indicate “social and cultural integration

The Tribunal in Binbuga had also held that the appellant was “socially and culturally integrated” into the UK in part because of his membership of a local gang, noting that gang culture although “unpleasant” is now an “accepted and widespread part of [UK] life”.

The Court of Appeal again disagreed. Membership of a pro-criminal gang “tells against rather than for social integration”, while the latter implies an “acceptance and assumption… of the culture of the UK [and] its core values… including the principle of the rule of law”.   Social and cultural integration in the UK “connotes integration as a law-abiding citizen” [56-58].

At the other end of the spectrum, the Court of Appeal in CI (Nigeria) [2019] EWCA Civ 2027 held that criminal offending and imprisonment would not “ordinarily, by themselves and unless associated with the breakdown of relationships, destroy the social and cultural integration of someone whose entire social identity has been formed in the UK.”

9. It is not “unduly harsh” for a child to suffer “normal” emotional and behavioural fallout when their criminal parent is deported

In PG (Jamaica) [2019] EWCA Civ 1213, the Court of Appeal considered the exception to the rule requiring deportation of a foreign criminal where the effect on their British or settled partner or child would be “unduly harsh” (s117C5 NIAA).

The Court held that this requires “a degree of harshness going beyond what would necessarily be involved for any partner or child of a foreign criminal facing deportation”. Although the appellant’s children would suffer “great distress” and “emotional and behavioural fallout”, these were no more than the likely consequences where any foreign criminal who has a genuine and subsisting relationship with a qualifying partner and/or children is deported.

It is questionable whether this is correct as a matter of law or fact.  There will be some children of foreign criminals with whom they have a genuine and subsisting relationship, but who do not suffer emotionally and behaviourally as a result of their parent’s deportation. In this regard, it is noted that the bar for establishing a genuine and subsisting parental relationship is not high. To assert that all such children will suffer distress and then to require hardship going over and above that arguably sets the bar too high.

10. Immigration law is too complex

Not exactly news, but in January 2019 the Law Commission published its long-awaited consultation on the simplification of the Immigration Rules.  In Robinson [2019] UKSC 11, the Supreme Court welcomed this “timely” development, commenting that “the structure of both primary and secondary legislation in this field has reached such a degree of complexity that there is an urgent need to make the law and procedure clear and comprehensible” [65]. Update: the Law Commission has since published its proposals.

Despite these welcome noises, 2020 looks set to bring yet more legislative complexity, including Conservative manifesto promises to “update” the Human Rights Act and to introduce an “Australian-style, points-based immigration system” (whatever that might mean).  Yet another eventful year beckons for immigration practitioners and their clients.

Michael Spencer is a barrister at 1 Crown Office Row. This article was co-authored by Alice Kuzmenko, who is a pupil barrister at 1 Crown Office Row.

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