The UT explained that the SSHD “overstates the significance of the rule change” and the effects of this change on Article 8 decision making where judges must decide whether an immigration decision is “in accordance with the law” . The attempted approximation of Statement of changes HC 194 in immigration rules “to a statutory assessment of the balance between competing interests” (like the one the House of Lords considered in Kay  2 AC 465) relied on by the SSHD in Huang was rejected by the UT for eight reasons: see .
The reasons for rejection included (i) Lord Bingham’s wisdom that the rules were not produced by “active debate in Parliament” where foreign immigrants needing visas enjoyed representation (ii) primary legislation was produced through a “clause by clause discussion of the measures” and allowed amendments and revision (iii) the negative resolution procedure was a weak form of Parliamentary scrutiny: Stellato  UKHL 5 (iv) the House of Commons is not Parliament and under the law its resolutions did not suffice as primary legislation: Stockdale v Hansard (1839) 9 A & E 1 (v) as in Huang, judges’ legal duties remained unaltered determining appeals – Parliament had not allowed judges to decide on proportionality on their own (vi) failing on the rules remained the “starting point of the Article 8 inquiry and not its conclusion” – failure on the rules does not equal failure on Article 8 and appellants could succeed “under the law” (vii) broad issues of social policy and individual immigration decisions where private and/or family life were to be respected are significantly different and (viii) Article 8 case law is developing and greater weight should be given to individualised consideration than suggested in Kay.
Explaining that it was “equally unimpressed” with arguments that subsequent to the arrival of HC 194 and Appendix FM “exceptional circumstances” was the right legal test for judges to apply in determining whether decisions were in accordance with the law, the UT  said this:
- Article 8 applied to numerous situations; people seeking entry clearance, irregular entrants and those who entered lawfully and had a reasonable expectation that their future was in the UK all figured in the equation.
- Therefore, “one size does not fit all” and so is impossible to apply one standard, for example whether there are “insurmountable obstacles” to these disparate cases, because the case law indicates that a fact sensitive assessment is necessary. Indeed, prior to the arrival of the new rules, the UT pre-empted this in Sanade; even long before that case, their Lordships’ House disapproved of “exceptional circumstances” as a test and expanded upon why this is so in EB (Kosovo). For the presidential UT, “these observations remain as true after the new rules came into force, as before.”
- Since the new rules were more demanding on applicants – minimum income at significantly higher levels than subsistence, continuous residence for 20 years in private life claims and in certain cases the absence of any ties elsewhere, insurmountable obstacles to cohabitation by spouses etc – more appeals were likely to arise with the “in accordance with the law” limb “as a real issue”.
Moreover, the UT rejected the belief that the new rules matched the standards established by the case law . In particular, like the tribunal in MF, the UT reiterated the discord between the rules and the best interests of minor children by clarifying that, “[t]he 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.”
In connection with the test of “insurmountable obstacles” – under which R’s claim failed – the UT elucidated that the rejection of an Article 8 claim by virtue of this requirement failed “to comply with principles of the established law” .
(3) Strasbourg – ECtHR
In Rodrigues da Silva & Hoogkamer v Netherlands  ECHR 86,  it was said that, “Article 8 does not entail a general obligation for a State to respect immigrants’ choice of the country of their residence and to authorise family reunion in its territory.”
Relying on Rodrigues da Silva & Hoogkamer v Netherlands, Nunez v Norway  ECHR 1047 and Antwi v Norway  ECHR 259, the SSHD argued that the “insurmountable obstacles” test was Strasbourg’s choice and preference in respect of removals and transferring family life abroad. The UT did “not read the Strasbourg cases as doing this” and this submission was rejected. Instead, the Strasbourg Court considered exceptionality and insurmountable obstacles as one of several factors in cases where there was unlawful entry or family life was established during a precarious immigration status. So, under the new rules, converting a factor into a minimum requirement for leave to be granted was wrong .
Moreover, in Boultif v Switzerland  ECHR 497, Strasbourg made no reference to “insurmountable obstacles”. Instead, the Court  focused on the word “difficulties”. Again the presidential UT  let it be known that:
- It is thus the degree of difficulty the couple face rather than the “surmountability” of the obstacle that is the focus of judicial assessment but again as a factor rather than a test.
(4) At Home
Equally, it was also obvious from national decisions that in its jurisprudence Strasbourg did not formulate exceptional circumstances or insurmountable obstacles as a test for Article 8’s engagement and that the Court only used such phraseology to arrive at “a decision on proportionality in the particular case” . In any event, the UT cited no less than five authorities – Huang  UKHL 11, EB (Kosovo)  UKHL 41, LM (DRC)  EWCA Civ 325, VW (Uganda)  EWCA Civ 5, JO (Uganda)  EWCA Civ 10 – to make clear that the use of these phrases in an Article 8 immigration context was “erroneous”. Moreover, the SSHD was advised that:
59. Whilst it is open to Parliament to change the law by primary legislation unless and until it does so these decisions are binding on the Upper Tribunal and will be followed by it.
Rejecting any notion that domestic authorities were at odds with the Strasbourg jurisprudence, the UT also explained that – as an international supervisory institution – the ECtHR applied “minimum standards rather than a uniform approach binding on every contracting state” . Therefore, the principle of subsidiarity allowed contracting states’ institutions (such as domestic courts and tribunals) a margin of appreciation “to conduct a primary examination of the competing considerations”. Underscoring the approach of their Lordships’ House in Daley  UKHL 26 – whether the interference is no more than necessary – as applied in Huang, the UT  highlighted the Supreme Court’s endorsement of the same in Quila  UKSC 46, see post here, where Lord Wilson JSC  lambasted the SSHD’s efforts to prevent forced marriages as being akin to using a sledgehammer to crack an unidentified nut.
Rather than evaluating cases through the lens of the least intrusive way of achieving the legitimate aim, Strasbourg itself assesses things in light of whether the interference is justifiable because it represents a fair balance of the competing interests. But the UT  noted that the international Court has never (1) considered the Daly and Huang Article 8 analysis to be wrong and (2) suggested that it is wrong for the national court to ask whether it is reasonable to expect the couple to relocate to an appellant’s country of origin. Subsidiarity aside, national courts were more “inclusive” than Strasbourg because they have to “apply the Convention through the prism of other legal obligations” such as the value of EU citizenship in relation to measures compelling EU nationals to exit the Union in violation of their residence rights : Ruiz Zambrano (European citizenship)  EUECJ C-34/09 as applied by the UT in Sanade and by the Court of Appeal in Harrison (Jamaica)  EWCA Civ 1736.
Moreover, under Mansoor  EWHC 832 (Admin) the uniform application of the rules – a method of preserving public safety, economic well being, preventing crime and disorder, protecting health or morals and the rights and freedoms others – is not a legitimate aim in itself warranting interference with Article 8. Hence, failure to meet the requirements for leave under the new rules is not synonymous with the SSHD demonstrating a proportionate and justified interference with Article 8 rights to prevent disorder . Furthermore, the UT agreed with R’s stance that the SSHD’s reliance on jurisprudence embedded in Article 8’s extradition context was unhelpful in the deportation setting because “the legitimate aim of prosecuting criminals pursuant to an extradition agreement is significantly different” .
Normally, it was not presumable that the rules were conclusive on Article 8. A fact sensitive inquiry was apposite and “the conclusion under the rules may often have little bearing on the judge’s own assessment of proportionality” . Although the SSHD may choose to grant leave where insurmountable obstacles to relocation exist, judges are unlikely to give weight to this in evaluating proportionality where the obstacles to relocation were significant and it would be unreasonable to expect the rest of the family to relocate elsewhere: nationality, duration of residence, the best interest of the child and other reasons matter in achieving this. “Exceptional circumstances” was incapable of being a legal test in the absence of a presumption that the rules struck a balance between the competing considerations.
Judges’ proportionality assessments allow them to consider the points in domestic and international jurisprudence regardless of whether these are manifested in the rules or not: the case law turned on important details such as criminality, reoffending, dangerousness, lawful admission, duration of residence, nationality and ties to the UK or country of origin . The Strasbourg jurisprudence exacted weighty reasons for expelling a person with long residence from childhood or where steadfast partners in a strong family relationship risked being separated . Conversely, weighty reasons or exceptional factors are needed to supersede the strong grounds for expelling individuals who used deception, fraud, built relationships in precarious circumstances and could not hope to be allowed to remain to continue their family and private life in the host state. Under Harrison (Jamaica) – per Elias LJ  to  – “exceptional circumstances” is apposite as a device to set the context for the specific decision; the UT’s use of such guidance in evaluation is neither a reference to “a definitive test” nor “otherwise unlawful” .
While FTT Judge Keane did not consider HC 194 and Appendix FM and R failed on the new rules, his (or “any”) error of law that failed to consider the rules is “immaterial” because the Article 8 assessment “as a matter of law … was satisfactory” .
No error of law was made in respect of whether J could reasonably be expected to relocate to Nigeria with R. Appendix FM’s paragraph EX.1.(b)’s language – “insurmountable obstacles” to family life outside the UK – may be a part of the SSHD’s policy but was not imposable on judges in Article 8 decision making .
The FTT gave sufficient reasons about why it was unreasonable to expect J to relocate to Nigeria with R. J was British, he was employed in the UK, his daughter studied here, and the SSHD did not allege that the FTT’s was irrational or perverse .
The UT accepted the SSHD’s submission that the FTT made a material error of law in relation to whether the decision was in accordance with the law because Judge Keane failed to consider R’s parlous immigration status when she married J and when she was refused admission to the UK. R misused her entry into the UK and failed to depart when she should have. Her relationship with J developed while she was in breach of the terms of her stay and she used bogus paperwork (including a fake settlement visa) to work: “It is unclear why she needed to work if she was a dependant of Mr Akinola’s before her return to Nigeria” .
Although the UT rejected “a general test of exceptional circumstances” , following the ECtHR’s approach in Nunez v Norway the factual matrix in R’s case – that she used deception, did not have minor children with J whose daughter from his past marriage lived in a separate household – was such “that weighty reasons existed to refuse her entry and justify her removal to Nigeria” . Judges making similar decisions were exhorted to follow suit.
Despite the SSHD’s ostensible victory, there was yet more sting in it for her. It was  explained that HC 194 Appendix FM’s provisions that applicants for leave on Article 8 grounds must not be in the UK as visitors, with leave for less than six months or with temporary admission are not fatal to an Article 8 claim. Yet in the present case, such requirements pointed to R’s uncertain connections with the UK and “her continuing connections with Nigeria.”
Given the facts of R’s case and J’s dual British and Nigerian Citizenship, his ties to Nigeria, that he married R in that country, the UT  concluded that:
The strength of the public interest in removal and the weakness of the right to respect for family life established in these circumstances, was such that any properly self-directed Judgewas bound to conclude that the Secretary of State had justified refusal of admission as a proportionate measure in the interests of prevention of crime and disorder, irrespective of the consequences to claimant and her husband.
Ultimately, on the facts of the case, in order to enjoy his family life J could follow R abroad because their “indefinite separation” is not “inevitable if she is removed to Nigeria” . So the SSHD’s decision was not unlawful; it was in accordance with the rules, and the applicable policy. It was made in pursuit of a legitimate aim and was proportionate and fair in the circumstances of the instant case and constituted a justified interference with Article 8 rights .
Sanade – who succeeded in his appeal; see posts here and here – was distinguishable because prior to falling foul of the criminal law he had not only been granted indefinite leave to remain, but his wife and minor children would be compelled to exit the EU upon his removal .
Overall the UT summarised its findings as:
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  UKUT 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.