Two recent Court of Appeal cases, heard together, have considered the legality of the immigration detention of those who are, or possibly are, minors. Such cases involve local authority age assessments, which are to be carried out according to the guidance set out in Merton  EWHC 1689 (Admin). Continue reading
Mirza v The Secretary of State for the Home Department  CSIH 28, 17 April 2015 – read judgment
On the same day as it handed down judgment in the Khan case (see Fraser Simpson’s post here), the Court of Session’s appeal chamber – the Inner House – provided further guidance on the relationship between the Immigration Rules and Article 8. Of particular interest in Mirza are the court’s comments on where the rights of a British spouse figure in the context of an application for leave to remain by his or her partner.
This week we welcome to the Blog our new team of commentators on Scottish human rights issues – Fraser Simpson, David Scott and Thomas Raine.
Khan v. The Advocate General for Scotland,  CSIH 29 – read judgment.
A Pakistani national refused leave to remain in the UK after expiry of his visitor visa has had his successful challenge to that decision upheld by Scotland’s civil appeal court, the Inner House of the Court of Session.
The request for leave to remain was initially refused under the Immigration Rules due to a lack of “insurmountable obstacles” preventing Mr Khan from continuing his family life in Pakistan. That decision was reduced (quashed) by the Lord Ordinary – a first-instance judge in the Outer House of the Court of Session – as although the decision had been in accordance with the Immigration Rules, the decision-maker had failed to undertake a proportionality assessment of the decision as required under Article 8 ECHR (read the Outer House judgment here).
MM(Lebanon) and Others, R (on the application of ) v Secretary of State for the Home Department & Anor  EWCA Civ 985 (11 July 2014) – read judgment
Neil Sheldon of 1 Crown Office Row acted for the appellant Secretary of State in this case. He has not had anything to do with the writing of this post.
Provisions in the Immigration Rules which impose income requirements on individuals living in the United Kingdom, who wish to bring their non-European Economic Area citizen spouses to live with them, are not a disproportionate interference with their right to family life under Article 8 of the European Convention on Human Rights. The Court of Appeal has also underlined the important (but often misunderstood) point that there is no legal requirement that the Immigration Rules should provide that the best interests of the child should be determinative. Section 55 of the Borders, Citizenship and Immigration Act 2009 is not a “trump card” to be played whenever the interests of a child arise. Continue reading
MF (Nigeria) v Secretary of State for the Home Department  EWCA Civ 1192 – read judgment
In what circumstances can a foreign criminal resist deportation on the basis of his right to family life under Article 8 of the Convention? Until 2012 this question was governed entirely by judge-made case law. Then rules 398, 399 and 399A were introduced into the Immigration Rules HC 395. I have posted previously on the interpretation of these rules here and here.
The rules introduced for the first time a set of criteria by reference to which the impact of Article 8 in criminal deportation cases was to be assessed. The intention of the legislature in introducing these rules was to state how the balance should be struck between the public interest and the individual right to family life:
Izuazu (Article 8 – new rules) Nigeria  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  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.
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. Continue reading
MF (Article 8 – new rules) Nigeria  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. Continue reading