The Convention that emerged from the ashes of war to protect people’s freedoms should not have been made a target for a party’s political designs. This case is about what Theresa may and may not do with the right to a family and private life. The Upper Tribunal (“UT”, Judges Storey and Coker) has made plain that “the rules do not and cannot replace the law that is binding upon us” . “That would be wrong” and contrary to the legislative duties of the courts: see Article 8 and Judges.
Despite all the negative spin that has been put on immigration we can still congratulate the government for the “new rules” because had they not been introduced, such a juicy decision on the status of domestic and international jurisprudence in relation to the nexus between the immigration rules and Article 8 would probably not have been produced.
The appellant (“A”), a Nigerian who was considered a “foreign criminal” and was liable for deportation under the provisions of the UK Borders Act 2007, established his family and private life in the UK. His daughter “F”, aged 16, is British. A entered the UK illegally in 1998 and records indicate, although he disputes it, that he claimed asylum in 2006. He received, for a conviction in 2009 arising out of offences committed in 2005, a sentence of 18 months for handling stolen goods and possession and/or use of a false instrument. In March 2009 he married a British woman, “SB”, whose daughter, F, is also British. Although they lived together, the SSHD did not give him a visa on the basis of his marriage. Instead, she moved to deport him by order under section 32(5) of the UKBA 2007. A also assumed the care of SB’s mother “VC” and her father “GC”: the latter requires daily kidney dialysis and A forms an “integral” part of their care.
Before offending in 2005, A was of good character and had no previous convictions. Following his offences in 2005, A bettered himself through his studies by pursuing a BSc degree in Financial Economics with Accounting at Birkbeck College, London.
At first instance, the First-tier Tribunal (“FTT”) dismissed A’s appeal against the deportation decision following which the UT, with the agreement of the SSHD’s representative, decided (in July 2012) that the FFT made errors of law in considering (1) the compatibility of the deportation provisions with Article 20 TFEU (2) F’s primary interests as a British child by deporting her stepfather (3) A’s OASys report (4) adequately A’s deportation vis-à-vis his British spouse SB and (5) family and private life as discrete elements with separate conclusions. Article 8 became the ground of appeal and A did not pursue his asylum claim further.
Most of all the UT felt that the status and meaning of the new rules would “preoccupy” the judiciary for some time to come and it welcomed the opportunity to set the stage for the future . In tracing the development of case law, the UT placed emphasis on the flexibility of section 2 (Interpretation of Convention Rights) the Human Rights Act 1998 which only required the courts to “take account of” (= “unproblematic”) Strasbourg jurisprudence whereas domestic judgments remained binding . “A very fine instrument indeed” was how Colm O’Cinneide described the mechanism to me last year. Ultimately, national courts declined to follow the tests such as “exceptional circumstances” and “insurmountable obstacles” in relation to Article 8 and outlawed them altogether. For example, in VW (Uganda)  EWCA Civ 5,  –  Sedley LJ took great pains to highlight that Lord Bingham’s EB (Kosovo)  UKHL 41,  was “the last word” on proportionality and thus, “the inquiry into proportionality is not a search for such an obstacle and does not end with its elimination.”
Rather, following Lord Bingham’s wisdom regarding Article 8’s general incompatibility with a “hard-edged” or “bright-line” rule, Sedley LJ famously defined the inquiry into proportionality as “a balanced judgment of what can reasonably be expected in the light of all the material facts.” And given that EB (Kosovo) is so memorable because the appellant, a child (at entry) asylum seeker, showed such kindness to an abandoned pregnant Somali girl (settled in the UK) and treated the daughter that she had as his own, what other conclusion could the court possibly have arrived at?
But less controversially, the human rights regime works under primary legislation; section 6 of the HRA requires compliance with Convention rights; section 84 (Grounds of appeal), subsections (1)(c) and (g), of the Nationality, Immigration and Asylum Act 2002 set out human rights grounds of appeal separately from normal grounds which oppose immigration decisions not being in accordance with the law or with the immigration rules. Similarly the so-called automatic deportation regime also affords protection to a person’s Convention rights. For almost twelve years the immigration rules made no express reference to Article 8. Instead, paragraph 2 of the rules required officials to perform their duties in accordance with the HRA. Save that deportation and removal could not be contrary to the Convention, on the whole changes in the rules remained policy changes influenced by Strasbourg .
Before the new rules came into force on 9 July 2012 decision-makers and courts applied a two-stage process considering first whether the decision was in accordance with the rules and then evaluating the Article 8 claim. The rules were irrelevant on the outcome of the Article 8 balancing exercise. The House of Lords approved of this method in Huang  UKHL 11. Not many appeals were decided against the government but in cases where the Article 8 claim was strong, the Convention trumped the rules. The UT characterised judges’ task under the approach as “relatively straightforward” .
The New Rules
The vital question in the UT’s mind was how Article 8 claims would be evaluated after the rule changes were introduced on 9 July 2012. “Tension” between the new and old ways of evaluating Article 8 existed . This conflict is obvious from the wording of the Statement of Intent: Family Migration and the later Immigration Rules on Family and Private Life: Grounds of Compatibility with Article 8 of the European Convention on Human Rights. (These documents were later garnished with new Immigration Directorate Instructions and Modernised Guidance to facilitate officials’ understanding of using the new rules.)
While a unity of consideration under the rules and Article 8 had been intimated and the purported ubiquity of the new evaluation was claimed, the existence of a caveat that the rules were “normally” determinative of an Article 8 claim, save in “in exceptional cases”, welcomes the idea that the rules remain an incomplete way to assess Article 8 cases . Numerous references in Home Office documents that announced the alignment of Article 8 within the rules admitted that in genuine exceptional circumstances the Convention would trump the rules in respect of removals and granting leave.
Following the 9 July 2012 changes, apart from intruding on provisions in relation to asylum, humanitarian protection and deportation and their relationship with Article 8, Appendix FM (Family Members) also became the mouthpiece for Article 8 as regards part 8 of the rules: it also aimed to safeguard children’s interests and welfare in the UK. Moreover, provisions for leave to remain because of private life – paragraph 276ADE (and 276DF for ILR) – were also inserted under part 7 of the rules.
Not a Complete Code for Article 8
Under Mahad v ECO  UKSC 16 – where the Supreme Court guided judges to read the rules for their real content (and the SSHD’s intentions) – IDIs and internal guidance are incapable of putting glosses on the content/wording of the rules which, under Odelola  UKHL 25 and Pankina  EWCA Civ 719, have the force of law  – . In such an environment, the UT did not find “it easy to regard everything that is said about Article 8 within the new rules as part of a coherent whole” . “Tensions within the rules” were observable because some of them still invited the decision-maker to go beyond what was there, whereas others interloped as being “a complete code for dealing with Article 8 claims”. Some rules are now “Article 8 specific or related” and mandate that where certain requirements are not met a claim will be refused under the rules.
Not only did the rules not include all possible types of claimants who sought to rely on family life, they also only provided for certain types of private life claims . The old two-stage process still retained value in cases where Article 8 was being raised for leave to enter or remain, for e.g. as a medical visitor. This scenario remained “ungoverned” by the rules because they are silent on what the SSHD should do and the old method is therefore still valid. Furthermore, the cumulative impact of the family and private life limbs of Article 8 was lost on the decision-maker. By strictly demarcating “family life” and “private life” heads of claim, it is unclear how the decision-maker is to consider in any individual case the cumulative impact of these.
Further problems are observable as family life, per Appendix FM, was confined to settled persons, British citizens or holders of limited leave as refugees and those in need of humanitarian protection. Equally, the private life and long residence provisions suffered from like defects. The continuing reliance on legal standards outside the rules – like paragraph 397 which forbids the making of deportation orders for persons enjoying rights under the ECHR or the Refugee Convention – only accentuated these deficiencies/difficulties.
Moreover, decision-makers and judges are still bound by section 6, HRA; paragraph 2 of the rules requires compliance with Article 8 (and the ECHR); the UK Borders Act 2007, automatic deportation, mandated consideration vis-à-vis ECHR; and the deportation provisions/administrative removal provisions made direct references to the ECHR.
[T]hese rules cannot be construed as providing a complete code for Article 8 claims.
Although emerging jurisprudence on the new rules would facilitate their “fuller understanding”, the present reality is that “the Article 8 specific rules have to be applied wherever they now apply” and claims can no longer be decided “wholly outside the rules” .
Moreover, discretion – “[l]imited leave … may be granted …”, under paragraph 276ADE (private life) for instance – was afforded to decision-makers vide the new rules but the discretion was exercisable “if all mandatory requirements are met” .
But equally, :
It is also important to flag one thing the new rules do not do. Even if (contrary to our understanding) they were thought to furnish a near-complete code for dealing with Article 8 claims, they still leave considerable scope for individual assessment. For example, in specifying that for certain categories there is an exceptional circumstances test, they still clearly contemplate that when applying this test decision-makers will have to conduct a fact-sensitive assessment of proportionality. We cannot see that they seek to prescribe the outcome of any particular case.
Conversely, or perhaps even paradoxically, the alternative argument remained and the UT did not – “in principle” – see illegitimacy in making specific provisions for Article 8 claims within the rules: it did not see “the mere enterprise” of making such rules as criticisable . Subsidiarity, the HRA’s legislative purpose of bringing rights home and the placing of human rights provisions on a statutory footing (the HRA itself, NIAA 2002 and UKBA 2007 as cited in the case) meant that there was nothing “amiss in publishing rules relating to assessment of Article 8 claims.”
Despite questions as regards the efficacy of the rules, setting Article 8 in the rules could be seen as promoting the principles of legal certainty and transparency which was the motto of the Home Office’s policy statement.
This post continues as The new rules: Article 8 and Judges.