MF (Article 8 - New Rules) Nigeria [Upper Tribunal]

 
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[2012] UKUT 393 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Upper Tribunal Judge Storey

Upper Tribunal Judge Coker

Between
MF
Appellant
and
The Secretary of State for the Home Department
Respondent

For the Appellant: Mr N Ahluwalia, instructed by Wilsons Solicitors LLP

For the Respondent: Mr P Deller, Senior Home Office Presenting Officer

MF (Article 8 — new rules) Nigeria

  • i. Prior to the new immigration rules (HC 194) introduced on 9 July 2012, 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.

  • ii. The new immigration rules set out a number of mandatory requirements relating to claims reliant on Article 8 (“Article 8 claims”) which make clear that if such requirements are not met, the Article 8 claim under the rules must be refused. They also contain related provisions which confer discretion but it is discretion to grant leave in response to an Article 8 claim only if the new mandatory requirements are met.

  • iii. Whenever the new rules have application judges are obliged to consider whether an appellant can show he meets the relevant requirements (s.86(3)(a) of the Nationality, Immigration and Asylum Act 2002). 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.

  • iv. Because for most purposes the immigration rules must be given legal effect (see Odelola [2009] UKHL 25), their requirements for applicants making an Article 8 claim to show “exceptional circumstances” or “insurmountable obstacles” are to be understood as legal requirements in the same way as any other mandatory requirements of the rules.

  • v. However, the new rules only cover Article 8 claims brought under some, not all, Parts of the Rules and only accommodate certain types of Article 8 claims.

  • vi. Even if a decision to refuse an Article 8 claim under the new rules is found to be correct, judges must still consider whether the decision is in compliance with a person's human rights under s.6 of the Human Rights Act (see s.84(1)(c), (g) and (e) and s.86(2) and (3) of the 2002 Act) and, in automatic deportation cases, whether removal would breach a person's Convention rights (s. 33(2) UK Borders Act 2007). Thus in the context of deportation and removal cases the need for a 2 stage approach in most Article 8 cases remains imperative because the new rules do not encapsulate the guidance given in Maslov v Austria App no.1683/03 [2008] ECHR 546, which has been endorsed by the higher courts.

  • vii. When considering Article 8 in the context of an appellant who fails under the new rules, it will remain the case, as before, that “exceptional circumstances” is not to be regarded as a legal test and “insurmountable obstacles” is to be regarded as an incorrect criterion.

  • viii. 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.

DETERMINATION AND REASONS

1. This is a decision to which both members of the panel have contributed. The appellant is a citizen of Nigeria. He is a foreign criminal as defined by s.32(1) of the UK Borders Act 2007 and his appeal lies against a decision by the respondent dated 28 October 2010 to make a deportation order against him pursuant to s.32(5) of that Act. We shall set out further particulars of his case shortly. His name and that of his family are anonymised solely in the interests of his daughter, F, who is aged 16.

2. This appeal raises issues under the new immigration rules, HC 395 (as amended from 9 July 20121) which seek, inter alia, to set forth a new framework for reaching decisions on claims based on Article 8 of the ECHR. We suspect that the issue of the status and meaning of the new rules will preoccupy Tribunal and higher court judges for some time to come and doubtless, as case law about the new rules develops, a fuller understanding will be reached than that offered here. But we must make a start and indeed the higher courts will expect to have the benefit of Tribunal thinking in a range of cases. The present panel is able to speak with some knowledge as to how the tribunal judiciary has dealt with Article 8 cases hitherto.

The previous position

3. The position as regards Article 8 cases prior to these new rules was relatively straightforward. Following the coming into force of the Human Rights Act 1998 (“ HRA”) on 1 October 2000, in early reported decisions of the former Immigration and Asylum Tribunal, for example Nhundu and Chiwera IAT [2001] 01/TH/1603, a structured approach was adopted which ensured that Article 8 claims were analysed in the same way as enjoined by Strasbourg jurisprudence. The validity of a structured approach was confirmed by the higher courts, in particular by the House of Lords in R (Razgar) [2004] UKHL 27. Reported cases also highlighted the importance of deciding Article 8 cases by reference to the criteria set out by the ECtHR in Boultif v Switzerland 54273/00 [2003] 33 EHRR 1179 as developed in the Grand Chamber cases, Uner v Netherlands 46410/99 [2006] 3 FCR 229 GC ECHR and Maslov v Austria [2008] GC ECHR 1638/03. As our higher courts began to develop fuller guidance on various aspects of Article 8, it was not always obvious to the tribunal judge that theirs was entirely consistent with that of the Strasbourg Court (e.g. whereas the ECtHR has for a long time applied tests of “exceptional circumstances” and “insurmountable obstacles”, the House of Lords in Huang [2007] UKHL 11 and the Court of Appeal in cases such as VW (Uganda) [2009] EWCA Civ 5 have proscribed the use of such tests). But that was unproblematic because, although s.2 of the HRA requires all judges to “take account of” Strasbourg jurisprudence, it does not give it binding effect and under our doctrine of judicial precedent decisions of our higher courts are binding on us.

4. What, however, has always been uncontroversial from the beginning is that our human rights jurisdiction is rooted in primary legislation. By s.6 of the HRA we are obliged to act in compliance with a person's Convention rights. As already noted, by s.2 of the same Act, although Strasbourg jurisprudence does not bind us, we are under an obligation to take it into account. Further, domestic primary legislation has identified specific human rights grounds of appeal: s.84(1)(c) and (g) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). These grounds are in addition to s.84(1)(e) (“that the decision is otherwise not in accordance with the law”), a ground that is distinct from and (as is made clear by s.86(3)(a)) wider than s.84(1)(a) (“that the decision is not in accordance with the immigration rules”). In relation to immigration decisions affecting foreign nationals, s.33(2) of the UK Borders Act 2007 provides, as one of the statutory exceptions (Exception 1) 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”.

5. Subject to transitional provisions, most of the new rules came into effect on 9 July 2012. During the period October 2000 to 8 July 2012 the immigration rules made no specific references to Article 8. Paragraph 2 imposed a duty on all primary decision-makers (Immigration Officers, Entry Clearance Officers and all staff of the relevant Home Office Directorate) to “carry out their duties in compliance with the provisions of the Human Rights Act 1998. There were specific rules in Part 13 dealing with deportation and administrative removal which specified that decisions on such matters are subject to the requirement that they not be contrary to the European Human Rights Convention (e.g. old paragraph 364, paragraphs 380, 395D). Some of the changes made to the immigration rules from time to time appeared to be the result of developments in Strasbourg jurisprudence, one example being paragraph 246 which provides for limited leave in order to ensure parental contact with a child; but they were essentially changes in the policy of the Secretary of State influenced by Strasbourg jurisprudence, no more than that.

Two-stage approach

6. Against this backdrop the judicial task was relatively straightforward. Cases involving Article 8 ordinarily2 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 that decision was contrary to the appellant's Article 8 rights. (In a very significant number of cases, where the appellant fell outside the immigration rules (e.g. because he was an overstayer), the only issue was (2)); and in considering (2) there was no reason to think that the rules had any decisive bearing on the conduct of the Article 8 balancing exercise. Under this two-stage approach the only way in which human rights considerations arose under...

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