‘New’ Article 8 Authorities Are Not Legislation

HRA 98R (Esther Ebun Oludoyi & Ors) v Secretary of State for the Home Department (Article 8 – MM (Lebanon) and Nagre) IJR [2014] UKUT 539 (IAC) (29 October 2014 )

This decision clarifies that judgments such as Nagre [2013] EWHC 720, Gulshan [2013] UKUT 640 (see here) and Shahzad [2014] UKUT 85 must not be construed as qualifying or fettering the evaluation of article 8 of the European Convention on Human Rights (ECHR). Equally, according to the Upper Tribunal, the guidance provided in these authorities must be read in context and must not be construed as if the judgments are pieces of legislation. This decision also tries to correct the axiomatic misunderstanding that under Nagre if a person does not satisfy the requirements for the grant of leave under Appendix FM or paragraph 276ADE of the immigration rules, then a “threshold” of a “good arguable case” needs to be shown before the duty arises to consider article 8 beyond any immigration rules which set out criteria for the consideration of family or private life.

Four Nigerian applicants/claimants challenged, on article 8 grounds, three decisions taken in 2013 and 2014 in relation to the refusal of their applications for leave to remain which were made in 2012. Each applicant also challenged the decision-maker’s failure to make appealable immigration decisions with an in-country right of appeal. The claimants lost on all grounds but the decision in this case nevertheless sheds much needed light on the burgeoning and complicated article 8 case law which has emerged since 9 July 2012.

Context

Aged 45 years, Mrs Oludoyi entered the UK as a student in 2006. She trained in the UK as a nurse and was granted a work permit until 2010. In 2013, when she was refused leave, she had been in the UK for 7½ years. Her husband, daughter and son entered in 2008 when they were aged 53 years, 17 years 8 months and 14 years 7 months. In relation to article 8, Mrs Oludoyi relied on being a nurse and her good immigration history. She did not challenge the decision on the rules but was aggrieved by the decision outside the rules. Her husband did not quarrel with the decision on private life outside the rules. However, their daughter (Christianah) and son (Samuel) challenged the decision on para 276ADE – as in force from 9 July 2012 to 27 July 2014 – that they had not lost their ties to Nigeria. They also challenged the decisions made in each of their cases outside the rules in relation to whether there were exceptional circumstances in their individual cases. Furthermore, Christianah and Samuel relied upon their relationships with their British partners and also on the fact that came to the UK as minors, studied here and had positive immigration histories.

Setting out the key passages of the new article 8 case law, the Upper Tribunal noted that the deportation provisions under part 13 of the new rules imported the proportionality test (by initial references to “exceptional circumstances”, later modified by HC532 to “very compelling circumstances”). In the private life context found in para 276ADE, the rule itself is silent on proportionality. Instead, the test is found in the guidance which explains that “‘exceptional’ means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate”this reflects that the Home Office accepts that domestic and Strasbourg jurisprudence in relation to proportionality continue to apply. After hearing the parties’ submissions, the Upper Tribunal was not in doubt that:

  • Section 6 (Acts of public authorities) of the Human Rights Act 1998, which makes it unlawful for a public authority to act in a way which is incompatible with article 8 and other Convention rights still applies.
  • The authority of Huang [2007] UKHL 1 and Strasbourg and domestic jurisprudence in relation to article 8 still apply.
  • There is nothing in Huang or in other domestic jurisprudence or Strasbourg jurisprudence which supports the proposition that a threshold must be reached before the obligation to consider an article 8 claim arises.
  • There is nothing in MF (Nigeria) [2013] EWCA Civ 1192 which suggests that the Court of Appeal considered that, in cases which do not meet the requirements of paras 399 or 399A, there is a threshold requirement (in the sense of whether there is a “good arguable case”) before it becomes necessary to consider proportionality.

In its decision, the tribunal drew a distinction between a “criterion-based rule”, i.e. a rule setting out the criteria to be satisfied for any family life or private life claim, and any immigration rule which imports the proportionality test. The tribunal reiterated the approach espoused by Sir John Dyson MR in MF (Nigeria) that the use of the phrase “exceptional circumstances” does not necessarily prescribe the application of a test of exceptionality. Rather, it is a reference to something very compelling, i.e. “exceptional”, being required to outweigh the public interest in removal in circumstances where the scales are heavily weighted in favour of deportation. The tribunal was of the view that Sir John Dyson’s approach at para 42 of MF (Nigeria) accorded with para 129 [incorrectly recorded by the tribunal as “para 128”] of MM (Lebanon) [2014] EWCA Civ 985 where Aikens LJ held that there is no utility in imposing a further intermediate test as preliminary to considering an article 8 claim beyond the relevant criterion-based rule.

Arguments

The competing arguments advanced by the parties were that, on the one hand, the Home Office argued that guidance in relation to “exceptional circumstances” provides the means by which it is decided whether there is a good arguable case outside the immigration rules for the grant of leave on the basis of article 8. Moreover, relying on Ganesabalan [2014] EWHC 2712, it was argued that by maintaining that there are no exceptional circumstances, the decision-maker is effectively communicating the absence of an arguable basis for the exercise of discretion outside the rules. In cases where an arguable basis for the exercise of discretion outside the rules exists, it may be necessary for the decision-maker to go on to consider article 8 “in the Razgar sense” – certain cases may require more reasoning than others and the approach is at one with para 129 of MM.

On the other hand, the applicants submitted that the threshold of “arguable grounds” is low whereas the threshold for “exceptional circumstances” is higher. Therefore the proposition, that a decision that there are no exceptional circumstances means that the decision-maker has decided that there is no arguable case for the grant of leave to remain on the basis of article 8, conflates two thresholds and results in the application of the wrong test. The applicants claimed that MM is clear that there is no need for an intermediate test and since the rules do not exhaustively cater for every type of article 8 case, there must be circumstances outside those specifically laid down in the rules that give rise to a good arguable case. Placing reliance in UE (Nigeria) [2010] EWCA Civ 975, the applicants argued that an individual’s value to the community in the UK, for example, on account of his or her occupation, is a relevant consideration in the proportionality exercise. Moreover, it was contended that any benefit to the public of an individual being allowed to remain in the UK (for example, if someone has skills which are in short supply) is one of those identified as a relevant factor.

Accordingly, the first applicant Mrs Oludoyi’s credentials as a nurse meant that she had a good arguable case for the grant of leave outside the rules. Thus, owing to the fact that Mrs Oludoyi had demonstrated a good arguable case because of her occupation, the decision-maker should not have proceeded immediately to the issue of proportionality because it was necessary for him to assess her article 8 claim in line with the five-step approach detailed in Razgar.

The tribunal rejected at para 23 the position that it is always necessary to follow the five-step approach detailed in Razgar because the need to do so will vary from case to case and may depend on the assessment that has been made under the relevant criterion-based immigration rule. According to Gill UTJ, it is futile to introduce the full five-step approach when considering the article 8 claim beyond the criterion-based rule in cases where findings as regards the enjoyment of family life or private life have been made. In such cases, it may be permissible to proceed to the proportionality test because the second and third steps are usually not contentious. The tribunal illustrated the principle by explaining that:

if the circumstances relied upon for the grant of leave outside the immigration rules relate to matters that go to proportionality (such as an argument that the work that the individual does is of public benefit), it may be permissible to proceed to proportionality.

The tribunal noted that in addition to Mrs Oludoyi’s employment as a nurse, her husband, a teacher by profession, worked as a security guard and that the couple’s children pursued their studies in the UK. As noted above, the instant claims were made in relation to applications for leave to remain submitted in August 2012 after the family’s appeal rights came to be exhausted in May 2012. Prior to this, the family’s case had already been through the tribunal system. Gill UTJ noted that Storey UTJ had remarked earlier that the family was poorly represented in the past and that their earlier applications (in 2010-2011) to remain in the UK on the basis of article 8 were rightly refused. To Storey UTJ’s mind, the family’s article 8 claim was “hopeless”. Similarly, the applicants had not been in the UK long enough to be able to establish any significant ties of private life which made their return to Nigeria disproportionate.

Guidance

The tribunal gave this guidance which makes it clear that the new case law on article 8 is not a trump card for the Home Office:

There is nothing in Nagre, Gulshan or Shahzad that suggests that a threshold test was being suggested as opposed to making it clear that there was a need to look at the evidence to see if there was anything which has not already been adequately considered in the context of the immigration rules and which could lead to a successful article 8 claim. These authorities must not be read as seeking to qualify or fetter the assessment of article 8. This is consistent with para 129 of MM, that there is no utility in imposing a further intermediate test as a preliminary to a consideration of an article 8 claim beyond the relevant criterion-based rule. As is held in Ganesabalan, there is no prior threshold which dictates whether the exercise of discretion should be considered; rather the nature of the assessment and the reasoning which are called for are informed by threshold considerations.

Rationale for Decision

The tribunal considered Mrs Oludoyi’s occupation as a nurse and the public value of her work to be “an empty point” and Gill UTJ found at para 45 that the decision-maker made a proportionate decision in light of the circumstances of the case. This was so despite UE (Nigeria) and Bakhtaur Singh [1986] 1 WLR 910 where it was held that an individual’s value to the community is a relevant consideration. In the latter case, Lord Bridge provided examples of individuals with such value, such as an essential worker in a company engaged in a successful export business or a social worker upon whom a local community depended or a scientific research worker engaged on research of public importance. However, the tribunal decided that the examples used by Lord Bridge in the House of Lords clearly convey that not all work that is of public value will make a material difference to the outcome. Instead, it will only rarely do so.

Gill UTJ found that the decision that Christianah and Samuel had not lost their ties to Nigeria was not unlawful. Ogundimu [2013] UKUT 60 did not help them. The omission of the second and third steps of the five-step approach was immaterial and the decisions on Christianah and Samuel’s article 8 claims were lawful as were the decisions regarding their parents. Gill UTJ noted that Christianah and Samuel did not enjoy family life, they were not engaged to be married and it was not irrational to expect them to maintain contact by other means and in the event they got engaged they “may apply for entry clearance as fiancée/fiancé respectively.”

The family had no legal basis to remain in the UK and the Home Office had not acted unreasonably or irrationally. Rather, it was entitled to expect them to depart voluntarily and, despite being requested to make a removal decision in pre-action correspondence, did not have a duty to issue removal decisions in their cases. They were not in “limbo”. So, in line with Patel [2013] UKSC 72 (see here) and Daley Murdock [2011] EWCA Civ 161, there was no obligation on the decision-maker to make appealable removal decisions – which would trigger a right of appeal – as regards the family who were overstayers.

The tribunal roundly rejected the distinction between “exceptional circumstances” per se and exceptional circumstances leading to the grant of leave outside the rules. Moreover, Gill UTJ was adamant that whilst “exceptional circumstances” is shorthand for disproportionality in the guidance as regards article 8 claims, a similar connotation was not ascribable to the expression in the removal decisions policy. This was because the phrase used in the latter was “exceptional and compelling” circumstances or reasons to make a removal decision and therefore it was up to the decision-maker to decide what does or does not amount to “exceptional and compelling”.

Comment

Judicial legislation has been the source of longstanding controversy in immigration law. Memorably, only a couple of years ago, in the context of the so-called one stop notice, in Lamichhane [2012] EWCA Civ 260, Sir Stanley Burnton accused Sir Stephen Sedley of engaging in “judicial legislation, not interpretation” and scolded him for doing “violence to the statutory wording” and imposing a duty where there was none by being seduced by the submission that “may must mean must”.

All that is done and dusted but perhaps despite the negative result for this Nigerian family, there may well be some sting in this decision for the Home Office which tends to elevate the decisions in Nagre, Gulshan, Shahzad and Ahmed [2014] EWHC 300 (see here) to the status of legislation. Hopefully, in light of this decision, they will stop citing these stale authorities in their inadequate two-page responses to pre-action judicial review correspondence.

On the other hand, the decision in relation to Bakhtaur Singh seems somewhat skewed because Mr Singh himself entered the UK for one week and then overstayed unlawfully but had his appeal upheld by the House of Lords because the Sikh community, which valued him as a member, would lose his religious, charitable and cultural services. It is also obvious that Gill UTJ’s view about the futility of introducing the full five-step approach, when considering the article 8 claim beyond the criterion-based rule in cases where findings as regards the enjoyment of family life or private life have been made, is clearly being misunderstood by some of her colleagues who are misreading it as shorthand for dismissing article 8 claims in a freewheeling kind of way.

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, ECHR, Human Rights Act, Immigration Rules, Nigeria, Proportionality, Removals and tagged , , . Bookmark the permalink.

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