The new rules: Article 8 and Judges

MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC) (31 October 2012) – see previous post for facts and background.

Despite commenting positively [29] on some aspects of the new rules, the UT still thought that it “would be wrong” to collapse the two-stage assessment using the rules and Article 8 into the rules alone because judges’ duties “under primary legislation are no less than were before.” Therefore, ordinarily, the two-stage assessment still prevails [32]. 

But the rules still applied at the first stage and judges still had to consider whether appellants met them and where discretion had been afforded whether it should have been exercised differently [33]. Per Mahad [2009] UKSC 16, [10] the rules were the rules and “the fact that these rules in part refer expressly to Article 8 or to certain Article 8 concepts is incidental” [34].

Furthermore, “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.” [34]. Given that the rules were the rules, the use of terminology such as “exceptional circumstances” – despite being vague, comparable to rule 317’s “most exceptional compassionate circumstances” test – and “insurmountable obstacles” as legal tests needed to be accepted but since the new rules are “context-specific” it was “wrong” to think that they imposed “an exceptionality test in all cases” [35] – [36].

The UT was bound by domestic precedents such as VW (Uganda) [2009] EWCA Civ 5 and so where an application is refused applying the “insurmountable obstacles” and the family life cannot “reasonably” be continued abroad, the Court of Appeal’s preference for a test of “reasonableness” still prevails [37]. Such an appeal would be allowed on human rights grounds. Strasbourg would rank second – “our duty is only to take account of Strasbourg jurisprudence”: emphasis supplied.

As a question of their methodology, the new rules did not mirror the Strasbourg jurisprudence as interpreted by domestic courts. The rules fail to incorporate fully the Boultif v Switzerland, App no. 54273/00 [2001] ECHR 497 criteria (confirmed by Maslov v Austria App no. 1683/03 [2008] ECHR 546).

[38] – [39]: Therefore in the context of deportation and removal cases the need for a two-stage approach in most Article 8 cases remains imperative because the new rules do not encapsulate the guidance given in Maslov v Austria [2008] ECHR 546 which has been endorsed by the Court of Appeal in JO (Uganda) [2010] EWCA Civ 10 and RS (Uganda) [2011] EWCA Civ 1749. The new rules worked so that the discretionary provisions only apply in cases where the mandatory requirements are met and no assistance is available where the requirements are not met [39]. Although decision-makers would consider the circumstances of individual Article 8 cases, they were lead in their task by “the medium of specific requirements” which is not consonant with the Maslov case [40].

Maslov v Austria (Grand Chamber)

Since age six Maslov (“M”) – a young Bulgarian (but ethnically Turkish) offender – resided lawfully in Austria. The Grand Chamber held that a ten-year exclusion order imposed on M, because of lack of ties with Bulgaria and strength of ties with Austria, could not be justified as necessary in a democratic society because the offences he had committed (aged 15) were non-violent.

It was established that in cases where the person to be deported was a young adult (yet to establish a family of his own) the relevant criteria to consider were the (1) nature and gravity of the offence (2) length of the complainant’s residence in the country from which he was to be expelled (3) time elapsed since the commission of the offence (4) complainant’s conduct since that time; and (5) strength of his or her social, cultural and family ties with the two countries in issue. Moreover, good conduct mattered and so did the best interests of the child. Where a juvenile committed the offences, very serious reasons were required to justify expulsion if the person had lawfully spent the greater part of his childhood or youth in the host country. So in M’s circumstances, even a limited exclusion order of ten years was not necessary in a democratic society.

Public Interest

Unlike in the past, rather than relying on the courts to give meaning to the public interest, under the new rules the SSHD has not only set out factors she considers relevant, but also what weight at the general level she attaches to them [42]. The result is that “foreign criminals” are subject to “criminality thresholds” which, save in “exceptional circumstances”, preclude Article 8 claims and the rules now define the public interest for judges. Under the Court of Appeal’s case law – N (Kenya) [2004] EWCA Civ 1094, OH (Serbia) [2008] EWCA Civ 694 and UE (Nigeria) [2010] EWCA Civ 975it is illegitimate to treat the public interest restrictively and therefore the extent to which the new rules modify the UT’s evaluation of the public interest “should not be exaggerated” [42] – [44]. While exceptionality was the badge of the public interest under the new rules, the proportionality assessment was incapable of treating “the public interest as immutable” and its “fixity” needed to be addressed in future/emergent cases [45]. For the UT [48], the new rules’ twofold interaction with Article 8 is that they:

  • Create new provisions which must be given legal effect, although it is left as a matter for the tribunal and courts whether their application is contrary to a person’s Article 8 rights; and
  • Operate to enhance judicial understanding of the “public interest” side of the scales.


Paragraph A362 of the new rules states:

Where Article 8 is raised in the context of deportation under Part 13 of these Rules, the claim under Article 8 will only succeed where the requirements of these rules as at 9 July 2012 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served.

From A’s perspective, this provision was inapplicable to his appeal because his deportation order was signed – prior to the plan for new rules being hatched – almost two years ago, the refusal letter made no reference to the new criteria, no new refusal letter was served and it was inherently unfair to deal with his case vide the new rules because had the FTT decided correctly the appeal would have been disposed of under the old rules. The UT found that paragraph A362 was too ambiguous to have retrospective effect [60]. Since the new rules concern how the SSHD decides claims, “it would need very clear words to show that A362 was intended to bind courts and tribunals hearing appeals against decisions that were made and appealed before A362 came into force” because Odelola [2009] UKHL 25 “did not establish that new rules are capable of governing appeals heard after that date in respect of decisions taken before it.”

To the contrary, in Odelola their Lordships’ House was concerned with executive decision making under the rules in force on or after the date in question. And notably, if paragraph A362 purports to regulate decisions under the old rules, it was hard to see how this arose from the rule making power contained under section 3(2) of the Immigration Act 1971. So the new rules could not apply to A’s case: an erroneous decision under the old rules, like the FTT’s, could not “transmogrify into a case under the new rules” [60].

Appellant’s Case: New Rules

Although the new rules demanded exceptional circumstances from A, they (curiously) omitted disclosing the factors which informed the SSHD as regards “the balancing exercise governed by this criterion”: the IDIs and Modernised Guidance were incapable of putting a gloss on the meaning of “exceptional circumstances” [62] – [63]. As regards Article 8, no test of “exceptional circumstances” was endorsed by the higher courts which had made the Maslov principles as binding on the UT [65]. But A’s case failed under the new (and old) rules.

EU Law

It was also a part of A’s case that his stepdaughter F was, for the purposes of EU law, his child and which meant that he was protected from automatic deportation because his removal under a deportation order breached his rights under the Community treaties. To this end A relied on Ruiz Zambrano (European Citizenship) [2011] EUECJ C-34/09, Dereci and Ors (European Citizenship) [2011] EUECJ C-256/11, and Sanade [2011] UKUT 48 (IAC). (See post here.)

 The Article 8 Assessment

Assessing proportionality required the private and family life components of A’s claim needed to be considered cumulatively. Moreover, applying MK (best interests of the child) India [2011] UKUT 00475 (IAC), F’s presence in the factual matrix meant that the UT had to tend to her interests as a child’s separately as part of the proportionality assessment [69].

But the new rules are evidence of the SSHD’s desire to fill proportionality related gaps in the rules and they were also “an index” of the augmented emphasis she “attaches to the public interest in deportation of foreign criminals” [70]. A’s crimes and his poor immigration history/illegal entry were not divorceable from his family and private life which developed in the time when his status in the UK was “precarious”: this weighed against him. Equally, the SSHD’s dithering on A’s asylum claim went against her in her bid to deport him. Under Maslov, the UT had to consider that A had not reoffended and did not pose a threat to the public. But the SSHD’s concession that expecting SB (A’s wife) and F to relocate abroad would not be reasonable diminished the scope of the UT’s proportionality assessment [72] – [74]. In the context of A’s ties to his wife, the relationship was founded when his status in the UK was “precarious” – and applying Maslov [57] – and it was not possible to conclude that his “deportation would be disproportionate” [77]. The conclusion about A’s involvement in caring for SB’s parents was the same: notwithstanding the emotional ties they shared, a member of the social services could perform A’s role.

But the conclusion in respect of F under section 55 (Duty regarding the welfare of children) of the Borders Immigration and Citizenship Act 2009 was different. The best interests of a child – a primary consideration – trumped everything else because F did not have a relationship with her biological father and, quite refreshingly, the UT thought that  “the present is much more important than the past” [79]. F considered A to be her father and his presence would make the task of managing VC and GC’s (SB’s parents) health easier: there would be less pressure on F.

So given the Maslov criteria, the SSHD’s concession regarding the family’s relocation and the UT’s duty under HRA section 6, A’s appeal was allowed on Article 8 grounds. For the UT, [80]:

Weighing all the evidence in the balance, we are satisfied that that it would not be proportionate in 2012 to deport the appellant.  It almost certainly would have been proportionate for her to have done so in earlier years before the appellant’s relationship with F became established, but, as noted earlier, the Secretary of State did not actively pursue the appellant’s deportation earlier which she could have done if his asylum application had been timeously processed.

The head note can be extracted as:

  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Automatic Deportation, CJEU, Human Rights Act, Immigration Rules, Proportionality, UKBA 2007 and tagged , , , . Bookmark the permalink.

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