Izuazu (Article 8 - New Rules) [Upper Tribunal]
| Jurisdiction | UK Non-devolved |
| Judge | The Hon Mr Justice Blake,Lord Bannatyne,Storey,Blake J,Storey UTJ |
| Judgment Date | 29 January 2013 |
| Neutral Citation | [2013] UKUT 45 (IAC) |
| Date | 29 January 2013 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2013] UKUT 45 (IAC)
THE PRESIDENT, The Hon Mr Justice Blake
Lord Bannatyne
UPPER TRIBUNAL JUDGE Storey
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Izuazu (Article 8 — new rules)
1. In cases to which the new Immigration Rules introduced as from 9 July 2012 by HC 194 apply, judges should proceed by first considering whether a claimant is able to benefit under the applicable provisions of the Immigration Rules designed to address Article 8 claims. Where the claimant does not meet the requirements of the rules it will be necessary to go on to make an assessment of Article 8 applying the criteria established by law. The Upper Tribunal observation in MF (Article 8-new rules) Nigeria [2012] 00393 (IAC) to the same effect is endorsed.
2. The procedure adopted in relation to the introduction of the new Rules provided a weak form of Parliamentary scrutiny; Parliament has not altered the legal duty of the judge determining appeals to decide on proportionality for himself or herself.
3. There can be no presumption that the Rules will normally be conclusive of the Article 8 assessment or that a fact-sensitive inquiry is normally not needed. 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.
4. When considering whether a decision is in accordance with the law, it has been authoritatively established by the higher courts that the test to be applied is not exceptional circumstances or insurmountable obstacles.
5. The UKBA continues to accept that EU law prevents the state requiring an EU law citizen from leaving the United Kingdom, although contends with good reason, that this is to be distinguished from a case where an independent adult can choose between continued residence in the United Kingdom or continued cohabitation abroad.
For the Appellant: Mr P Nath, Senior Home Office Presenting Officer
For the Respondent: E Fripp instructed by Luqmani Thompson and Co.
This is the Secretary of State's appeal from a decision of Judge Keane sitting in the First-tier Tribunal given on 31 July 2012. This was originally a fast track appeal from a decision of the Secretary of State refusing Ms Izuazu leave to enter the United Kingdom on asylum and human rights grounds. We shall refer to Ms Izuazu as the claimant. The judge dismissed the asylum claim but allowed the claimant's appeal under Article 8 ECHR by reason of her marriage in March 2012 to Julius Akinola.
The grounds of appeal submit that the judge erred in law in his Article 8 decision by failing to follow the provisions of the new Immigration Rules (HC 194) published on 13 June 2012 and stated to take effect on 9 July 2012 where the Home Secretary set out a scheme as to when leave to enter or remain would be granted on human rights grounds. This is an issue of considerable public importance as many decisions are being made to which the new rules have potential relevance.
Permission to appeal was granted on 3 August 2012 and the case taken out of fast track. There was a case management hearing on 12 September 2012 following which the appeal was listed before a panel of the UT for a day.
The claimant had been unrepresented before the First-tier Tribunal but she had subsequently secured the services of Luqmani Thompson and Partners before us. We acknowledge the assistance her representatives have provided to us to decide the points of principle and the appeal.
On 5 October 2012 she lodged a skeleton argument signed by leading counsel Raza Husain QC as well as Mr Fripp and a bundle of authorities in support of the appeal and a copy was served on the Home Office Presenting Officers Unit. It was, therefore, with considerable dismay that the panel constituted to hear this appeal received the news shortly before the case was called on at 10.00am Tuesday 9 October, that Mr Nath was asking for a photocopy of the court bundle as he had no or incomplete papers. It was with greater dismay that we received an application to adjourn the case to a new date as he did not consider himself sufficiently prepared to advance his own appeal.
We rejected this application given the history set out above and the need for a panel of the Tribunal to consider the important matters raised in the appeal. We adjourned the matter for one hour for further preparation to be undertaken and before we did so we posed some questions that we indicated we would like assistance on in due course. The hearing then proceeded and Mr Nath made submissions but acknowledged he was still unable to answer our questions. At the end of the hearing we issued directions giving a timetable for a written response to our questions.
For the SSHD:
(i) What difference, if any, do the recent changes in the Immigration Rules have on the pre existing case law of the Supreme Court and higher appellate courts as to the learning on Article 8? If it is contended that the relevant tests for assessing whether an immigration decision interferes unjustifiably with family life have changed, how can rules achieve such a change?
(ii) Does the UKBA continue to accept that it is not reasonable to expect a British citizen party to genuine family life in the UK to relocate permanently abroad (paras 93 to 95 of Sanade and others [2012] UKUT IAC)? If not why not and how is it compatible with Dereci to require an EU citizen to live outside the EU?
For the claimant:
(iii) Now that the rules make express provision for Article 8 claims to remain, is it accepted that the circumstances whereby a person who fails under the rules but may succeed under the law relating to Article 8 will be narrower and will be exceptional having regard to the new criteria? If not why not?
We received the response of the Home Office on 24 October and the claimant in reply on 30 October 2012. We are grateful to the parties for their written submissions. We append the Home Office submission to this determination as appendix A, in the light of the potential importance to other cases of the observations made and for completeness we append the claimant's at appendix B.
We, nevertheless, take this opportunity to express our dissatisfaction at the appellant's lack of preparedness in this case, although on what we were informed it does not appear to have been the individual responsibility of Mr Nath. This was the Secretary of State's appeal on a profoundly important new issue for determination by this Tribunal with potential impact on many cases being heard daily across the country. Whenever an issue of this significance arises the Upper Tribunal is likely to constitute itself as a panel and deploy the most senior judges available to it at the time. It needs to give clear and comprehensive guidance to judges sitting throughout the United Kingdom as speedily as possible. Here there had been a case management hearing attended, we were informed, by a Home Office Presenting Officer where the importance of the issue would have been made plain in the listing arrangements. Whether or not the Presenting Officers' Unit was aware that the President and a judge of the Court of Session were to sit on this appeal is not the point. The Tribunal is entitled to expect that any advocate before it will be properly briefed with the relevant documents, fully prepared to address the issues that everybody is aware arises, and is capable of addressing the issues orally when they arise. Not for the first time, we conclude that there has been a failure by UKBA of its duty of co-operation with the Tribunal to advance the over-riding objective of fast, fair and efficient adjudication.
As it happens the urgency of this case as a guideline decision has been mitigated by the decision of the UT in MF (Article 8–new rules) Nigeria [2012] 00393 (IAC) promulgated on 31 October 2012.
The claimant is a citizen of Nigeria. She was born in 1967, married in 1989 and has five children by a marriage that broke down between 2006 and 2008. From October 2005 to November 2007 she made a number of visits to the United Kingdom on multiple entry visas, the last of which was issued in October 2007 for five years. It was during these visits that she met Mr Akinola.
On 4 May 2008 the claimant entered the United Kingdom again as a visitor. On this occasion she overstayed her leave to remain by 10 months. She returned to the United Kingdom after a short break away and again over-stayed her leave to remain by two years. Subsequently evidence came to light that indicated that during this period she had started working in the United Kingdom using false identity papers.
In March 2012 she travelled to Nigeria with Mr. Akinola. She applied for entry clearance as a spouse and the application was refused in April 2012, because the ECO was not satisfied that the relationship between the parties was genuine or that the accommodation that Mr Akinola personally occupied (one room in a flat that was rented out to others) was sufficient for the couple and the claimant's youngest daughter by her previous marriage.
An appeal was lodged but the claimant returned to the United Kingdom on the 16 May 2012 where she once more sought to enter as a visitor. On this occasion the false identity papers and false National Insurance number came to light. She was charged with offences in respect of these documents to which she pleaded guilty at the Magistrates Court on 18 May and was given a sentence of twelve weeks' imprisonment. She was transferred to immigration detention on 29 June 2012. She then made a claim for asylum which she withdrew and then re-instated. The decision to refuse her leave to enter on asylum and...
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