Lately a plethora of immigration decisions have descended upon us. All this sensational case law makes awesome reading. But it is impossible to read it all. One aspect of the emergent case law is the jurisprudential saga surrounding Article 8’s nexus with the “new rules” and last week the Upper Tribunal (“UT”) handed down its second decision on this problematic area of the law. In the instant case, on the Secretary of State for the Home Department’s appeal, the UT decided to reverse an Article 8 ECHR decision made by the First-tier Tribunal (“FTT”). Yet the presidential UT (Blake J, Lord Bannatyne and Judge Storey) took the opportunity to reconfirm that the new rules are not the final word on Article 8.
Despite the particulars of the present case, it is disappointing that many FTT judges – who must adhere to the learning on Article 8 – think that the new rules permit them to omit conducting the customary proportionality assessment and not refer to what the late Lord Bingham said at  in Razgar  UKHL 27. Sadly, the words “proportionate” or “proportionality” are being erased from decisions. But hopefully, along with the earlier case of MF (Article 8-new rules) Nigeria  UKUT 00393 (IAC), this case shall change that.
A Nigerian national and a mother of 5 children whose first marriage broke down, Uchenna Eucharia Izuazu (the respondent or “R”, referred to as the “claimant” by the UT) had a chequered immigration history. R visited the UK where she formed a relationship with Mr Julius Akinola (“J”) and overstayed her entry into the UK (on her multiple entry 5-year visa) by 10 months, then exited briefly but later re-entered to overstay her entry by 2 years. She also used false papers to work in the UK. In 2012, R and J visited Nigeria from where R applied for a spouse’s entry clearance which was refused because of doubts about the genuineness of the relationship and insufficient accommodation. Although the decision was appealed, R arrived in the UK and sought entry as a visitor but she was charged for her false NI number/papers. R pleaded guilty, received 12 weeks’ imprisonment in the magistrates’ court. After serving her sentence, R was transferred to Yarlswood IRC where she claimed asylum, withdrew the claim only to resurrect it later.
R’s asylum claim was refused and she was unrepresented before Judge Keane. He concluded that R was a credible witness but dismissed her asylum appeal. However, he allowed the appeal under Article 8 ECHR. Judge Keane concluded that R and J had been in a genuine relationship for more than 3 years. Moreover, J had a daughter from his previous marriage who studied in the UK and kept in touch with J who was British and had stable job in the UK. The FTT concluded that R had established family life in the UK because of her relationship to J and that she had a private life by reason of her previous residence and desire to stay on in the UK. Unlike some others of his rank, applying Razgar he posited that the essential question was whether the interference was proportionate and a fair balance between the interests of the community and R and J’s.
The judge acknowledged R’s poor record, but following Lord Bingham’s EB (Kosovo)  UKHL 41 approach he concluded that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal. He also acknowledged that J was born and bred in Nigeria but reckoned that the sacrifice for J to give up 23 years of life in the UK would be too great to follow R overseas and so it was unreasonable to expect him to depart from the UK to continue his family life in Nigeria.
Aggrieved, the Secretary of State for the Home Department (“SSHD”) appealed because she felt that Judge Keane failed to adhere to the “new rules” which – from 9th July 2012 – purported to consolidate Article 8 ECHR within the Immigration Rules. In her grounds of appeal, the SSHD complained that (i) Appendix FM (Family Members) was not considered (ii) the test under the rules of there being insurmountable obstacles to family life with a partner continuing outside the UK was not applied (iii) sufficient reasons were not given why it was unreasonable to expect J to relocate to Nigeria and (iv) insufficient weight was given to the legitimate aim of safeguarding the economic well being of the UK through effective immigration control and the public interest in removing R.
Given that the UT thought the government’s appeal to be “an issue of considerable public importance as many decisions are being made to which the new rules have potential relevance” , the tribunal was dismayed when the SSHD (through Senior HOPO Mr P Nath) made excuses about proceeding with hearing the case because of incomplete papers . In truth, R was no longer unrepresented and Raza Husain QC and Eric Fripp had entered the arena; understandably the SSHD was worried.
Although the SSHD’s application to adjourn the case to a new date was rejected, an hour’s adjournment was allowed but Mr Nath was unable to answer questions posed by the UT and directions were given for the questions to be answered in writing . The UT made clear that it was dissatisfied with the SSHD’s “lack of preparedness” because it was her own appeal on “a profoundly important new issue” which impacted appeals countrywide and the presidential tribunal said that “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” .
The UT asked the SSHD whether the changes in the Immigration Rules made any difference to the existing jurisprudence or “learning” in relation to Article 8? And if the legal tests for evaluation whether immigration decisions unjustifiably interfere with Article 8 have changed how can the rules achieve such a change? Moreover, under Sanade  UKUT 468, see here, did the still government accept that it was unreasonable to expect British citizens enjoying family life to move abroad permanently and if not then why? Furthermore, how is it compatible with Dereci (European citizenship)  EUECJ C-256/11 to require a Union citizen to live outside the EU?
R was asked whether she accepted that if her Article 8 claim failed on the rules but succeeded “under the law”, would consideration under the latter (in light of the new rules) be “exceptional” and if not then why?
The SSHD’s answer to the first question was that, unlike before, the present rules reinstated the exceptional circumstances test impugned by Huang  UKHL 11 as their Lordships’ House examined rules that did not expand upon the UK’s position to Article 8. Insofar as R was concerned, she submitted that authoritative case law arising from the Human Rights Act 1998 was unimpeachable via statements of executive policy like the rules. However, neither view was accepted in full measure. (The answers to the other questions are appended to the UT’s decision.) Although R’s position that the rules were incapable of vacating statutory duties or rescinding authoritative jurisprudence on interpreting that duty was accepted by the UT, the idea that the new rules had no bearing on the Article 8 balance was rejected . As confirmed by the UT in MF (Article 8-new rules), unless struck down for illegality or irrationality, the rules were the rules .
Citing Odelola  UKHL 25, the UT  explained that the rules are (a) executive not legislative (b) the SSHD’s and not Parliament’s (c) create legal rights and give appellate rights under statute (“that the decision is not in accordance with immigration rules”) and (d) binding upon judges who must apply them in deciding appeals. The UT acknowledged in MF (Article 8-new rules) that the rules have legal effect not because they are law but because the legal structure of immigration appeals allows the rules a mandatory rank and, apart from discretion under them (i.e the rules), disallows judges from exercising a discretion differently from the SSHD.
It was explained that there was “nothing unlawful about” the SSHD publishing guidelines giving effect to Convention obligations. Likewise it was also lawful for aspects of the public interest to be accorded weighty reasons for justifying interference. After all, historically, policies within and outside the rules have been operated to incorporate Article 8 issues . In Huang – where the UT’s President, Blake J (or Nicholas Blake QC, as he then was) acted against the SSHD – the immigrants submitted that all types of human rights claims were not accommodated by the rules but where policy statements existed weight could be given to them.
The SSHD relied on  of Lord Bingham’s speech where his Lordship highlighted the need for a robust and fair system of immigration control which was not “unduly porous” and discouraged “fraud, deception and serious breaches of the law”. Equally, his Lordship had also urged deference to the SSHD’s views and the UT followed suit by letting it be known that:
38. We see no reason why a statement of policy as to when those with no other claim under the Immigration Rules will or will not be admitted or expelled, should not be expressed in the Immigration Rules, and when they are, appropriate weight should be given to it for the reasons given by Lord Bingham.
Drawing an analogy – on its own initiative – for Article 8 purposes from the jurisprudence surrounding Article 5 ECHR (Nadarajah  EWCA Civ 1768, Lumba  UKSC 12), the UT  said that while the rules and associated policy statements do not carry the force of the law, they nevertheless form a part of the law in answering the question whether an interference is “in accordance with the law” for rights that are balanced rights under the Convention. Hence, an interference with Article 8 rights that contravenes lawful policy is also “probably” not in accordance with the law so as to justify an interference with Article 8 rights. Like the UT in MF (Article 8-new rules), the instant tribunal,  – , urged judges to consider (1) whether an appellant can profit from the Article 8 based rules (if so, then the exercise shall stop here as the “appeal can be allowed because the decision is not in accordance with the rules”) and (2) if not then to evaluate Article 8 “applying the criteria established by law.”
In ascertaining proportionality – whether the decision is a justified interference with Article 8 rights – the rules and policy statements have purchase and the question that judges should answer is whether the interference is “a proportionate means of achieving the legitimate aim in question and a fair balance as to the competing interests” . Strasbourg/ECtHR and domestic jurisprudence steer the extent to which the rules reflect human rights considerations, but weight needs to be attached to the particular facts – found by judges – of individual cases .
Analysing part 13 (Deportation) of the rules the UT  observed that, unless paragraph 399 applied, in relation to family life claims and deportation – where there was persistent or grave offending – paragraph 398 operated to give precedence to the public interest over family life. Paragraph 399 is engaged in cases where a British child is resident in the UK for 7 years and it would be unreasonable to expect him/her to leave the UK and no other family member is able to care for him/her in the UK. Owing to the fact that a child’s best interests are a primary consideration under the law, the UT opined that in an Article 8 context it was hard accord weight to the italicised requirement because “a child’s best interests would normally require the maintenance of a genuine and effective care by both parents rather than a default position of the absence of any family member to care for the child” . Conversely, the residence requirement of 7 years remained a helpful pointer towards the circumstances in which it was reasonable to expect a child, irrespective of nationality, “to have the company of a caring parent” in the UK.
Since the decision in the present case was taken after 9 July 2012, the new rules applied and the UT did not have to “grapple” with the issue of whether the new rules applied retrospectively . Save paragraph A362 (whereby Article 8 claims only prevail in the event the rules are satisfied as at 9 July 2012 irrespective of when an intention to deport was notified/deportation order was served), Appendix FM does not apply to applications made and not decided before 8 July.
However, the UT observed , that the rules were silent as to their application to deportation decisions that are made and the appeals determined prior to 9 July but may have to be re-examined later. But it was clear that the new rules were incapable of undermining judicial decisions allowing an appeal on Article 8 grounds taken before they came into effect.
Therefore, public law and human rights principles were offended by “a retrospective deprivation of the benefit of a favourable decision under the law” and there were “compelling reasons” why appellants who won (or should have) appeals before FTT judges prior to the new rules “should not be deprived of … benefit” just because a judge was wrong and a new decision had to be made. On the other hand, fresh Article 8 adjudication after 9 July was naturally inclined to give weight to the SSHD’s policy in the rules.
For more please read Tribunal Unimpressed With New Rules Again: Part 2.