This was the Home Office’s appeal against the decision of First-tier Tribunal where the judge upheld Dube’s appeal in relation to being refused indefinite leave to remain. Dube was a female Zimbabwean born in 1948 who entered the UK as a visitor in 2002. Her initial attempts to remain in the UK on human rights grounds failed and appeal rights became exhausted in 2005. She overstayed but made further applications for leave to remain in 2010, 2011 and 2012. In response to the application made in 2012, the Home Office did not consider it sufficient reasoning to grant leave to Dube despite the fact that she was HIV positive (diagnosed in 2003) and that she suffered from hyperthyroidism, dizzy spells and memory loss. Similarly, the refusal rejected the claim that she had formed a family life with her children and grandchildren in the UK. Similarly, her assertions that she had ties to the Seventh Day Adventist Church amounted to naught and were immaterial. She had not been in the UK for 20 years and she also accepted that she had family ties with two brothers and a 37-year old son in Zimbabwe.
The refusal maintained that she remained in the UK with full knowledge of her illegal status. She could return to Zimbabwe and continue her activities with her church there. Her health problems could be addressed in Zimbabwe as confirmed by the Country of Origin Service Report. Despite all this, the First-tier judge conducted a freewheeling sort of article 8 ECHR analysis. He concluded that Dube discharged the burden of proof and the reasons given by the decision-maker did not justify the refusal. Applying EB (Kosovo)  UKHL 41, he found that with the passage of time, where a person should have been removed but was not, the importance of immigration control became diluted. Dube had cast down roots in the UK over a period of fourteen years. She should have been removed in 2005 but was not.
In the judge’s Razgar analysis, the refusal interfered with article 8; the interference engaged article 8; it was in accordance with the law and may even have been necessary in a democratic society for the economic well-being of the UK, but it was not proportionate. Her removal would cause the breakdown of her family life, which could not have been recreated in Zimbabwe and so the decision was not in accordance with the law and “Part 5 of the latest applicable rules.”
Advancing fivefold grounds of appeal, the Home Office argued that (i) the judge had erred in treating delay as having “determinative weight” because Dube deliberately overstayed for years; (ii) her family life was developed with that knowledge; (iii) the judge had failed to conduct the proportionality exercise in line with the statutory public interest requirements; (iv) rather than being open-ended about article 8, the judge should have considered Dube’s inability to succeed under the rules as “a weighty proportionality factor in favour of removal”; and (v) Dube could preserve her relationship with her UK family via modern means of communication and visits and the judge was wrong to find that her removal to Zimbabwe would mean the “breakdown” of her family life.
The Home Office accepted that no attempt was made to remove Dube between 2005-2011 but it took issue with the idea that her family life, which was not established, would breakdown if she was removed; she could keep in touch with people through electronic means and visits. But it was unhappy with the freewheeling article 8 analysis of the judge.
From Dube’s perspective, section 117 had been considered and the reference to Part 5 of the latest rules was simply shorthand for Part 5A of the Nationality Immigration and Asylum Act 2002, i.e. sections 117A-117D. Lord Brown’s analysis in EB (Kosovo) was beyond reproach. Indeed, he rightly held that the value ascribed to immigration control in relation conducting the article 8 balancing exercise could be offset by delay and overstayers were able to buy into the government’s inefficiency. The judge granting permission thought that the delay point was rightly decided. Equally, Dube had done everything to make her presence less precarious and the Home Office had accepted that during 2005-2011 Zimbabwe was a dangerous removal destination.
The Upper Tribunal
Nicol J and Storey UTJ followed the decision in YM (Uganda)  EWCA Civ 1292 (see post) where the Court of Appeal (Aikens LJ, Sir Colin Rimer and Sir Stanley Burnton) unanimously allowed an appeal on article 8 grounds in a case involving a Ugandan man who pleaded guilty to two counts under section 8 (attendance at a place used for terrorist training) of the Terrorism Act 2006 and was therefore sentenced to 3 years and 5 months’ imprisonment.
The Upper Tribunal felt that the First-tier judge’s mistake in saying that the refusal was not in accordance with the rules and the law was irrelevant; the error was atoned by the judge’s finding that Dube had demonstrated a breach of article 8. Criticism of a “freestanding” article 8 analysis was off target as Dube applied using form FLR(O), before transition (on 9 July 2012 ) to HC194, at a time when article 8 was entirely outside the rules. Although the grounds of appeal were open to criticism, they raised some important issues on the judge’s decision on delay, his disregard for the precarious nature of Dube’s immigration status, his failure to take account of sections 117A-117D and his finding that removal would equate a breakdown of family life.
Insofar as structure is concerned the provisions do not override, or are not a radical departure from, the learning on article 8 and Nicol J and Storey UTJ took the view that the new statutory requirements did not encroach on the formula laid down in Razgar. On proper analysis, sections 117A-117D amplify the fifth question in Razgar, one that is underpinned by proportionality and justifiability. Under section 117A(3) “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under article 8(2) and in MM (Lebanon)  EWCA Civ 985 it was held at para 78 that justification of a measure requires a demonstration that (i) the policy pursues a legitimate aim; and (ii) there is a relationship of proportionality between the means employed and the aim sought to be realised.
Applying MF (Nigeria)  EWCA Civ 1192, which concerned the impact of the new rules on article 8 case law, to the context of Dube’s case: substance (and not form) mattered. Moreover, as held in AJ (Angola)  EWCA Civ 1636 there are instances where the tribunal has in fact applied the requiste test despite its failure to expressly refer to black letter law. The appeal in Dube’s case (since she was not a foreign criminal, section 117C did not apply to Dube) was decided after sections 117A-117D entered into force on 28 July 2014 and the judge had to apply them but his decision could not be faulted simply because of his error of referring to the “rules” – legal error would only arise out of a failure to apply the substance of the provisions.
The judge had not provided reasons in relation to why he considered that Dube’s article 8 claim succeeded on the family life limb (which the Home Office had rejected because of its view that her relationships fell within her private life). In allowing the appeal on the “balance of considerations” (including Dube’s age, poor health and vulnerability and long stay in the UK) the judge’s decision went against longstanding authority (such as Bensaid v UK (2001) 33 EHRR 205, Razgar, JA (Ivory Coast)  EWCA Civ 1353, GS (India)  EWCA Civ 40) which indisputably held that a number of these factors clearly lie in the domain of private life. In section 117B(4)(b) and (5) terms, little weight should have been ascribed to private and family life that arose as a result of unlawful residence.
Nicol J and Storey UTJ observed that sections 117A-117D do not exhaustively address article 8 considerations. Accordingly, judges need to apply case law to resolve situations falling outside the scope of these provisions. The Upper Tribunal readily accepted the submission that precariousness in immigration status applied to both the private and family life limbs of article 8. Nicol J and Storey UTJ applied the key judgment of the ECtHR in Jeunesse v Netherlands  ECHR 1036 and explained that the judge needed to engage with this point because any decision on the “public interest question” as defined by section 117A(3) would have been incomplete without it. In that case, at para 108, the Grand Chamber reiterated its established view that in circumstances where someone’s immigration status was precarious “it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8”.
Renvoi to EB (Kosovo) was not enough for the Upper Tribunal and it held that the enacted statutory provisions governing the article 8 proportionality assessment was a change that needed be taken into account. Indeed, if anything, Lord Bingham of Cornhill at para 13 foresaw that the proportionality assessment would not remain static and would evolve in light of any changes in governmental policy. In relation to family life in Zimbabwe in the form of two brothers and a 37-year old son, on which there was no challenge from Dube, Nicol J and Storey UTJ found that the judge failed to refer to them at all. That is to say that for the judge the breakdown in family life was a “breakdown of her family life” per se rather than a breakdown of her relationship with family members in the UK; the approach was compromised because it was underpinned by a belief that Dube’s removal would amount to the destruction or flagrant denial of her right to respect for family life. The judge had erred in law. Since neither Dube nor her witnesses gave evidence in the First-tier Tribunal, Nicol J and Storey UTJ thought that justice would best be served by adjourning the case for a further hearing in order to re-make the decision because her claim to be financially and emotionally dependent on her children in the UK was untested.
The Key Features
Nicol J and Storey UTJ stressed the following points:
(1) Key features of sections 117A-117D of the Nationality, Immigration and Asylum Act 2002 include the following:
(a) judges are required statutorily to take into account a number of enumerated considerations. Sections 117A-117D are not, therefore, an a la carte menu of considerations that it is at the discretion of the judge to apply or not apply. Judges are duty-bound to “have regard” to the specified considerations.
(b) these provisions are only expressed as being binding on a “court or tribunal”. It may be that the Secretary of State will consider it in the interests of good administration and consistency of decision-making on article 8 claims at all levels to have express regard to sections 117A-117D considerations herself, but she is not directly bound to do so.
(c) whilst expressed in mandatory terms, the considerations specified are not expressed as being exhaustive: note use of the phrase “in particular” in section 117A(2): “ In considering the public interest question, the court or tribunal must (in particular) have regard—”
(d) section 117B enumerates considerations that are applicable “in all cases”, which must include foreign criminal cases. Thus when section 117C (which deals with foreign criminals) states that it sets out “additional” considerations that must mean considerations in addition to those set out in s.117B.
(e) sections 117A-117D do not represent any kind of radical departure from or “override” of previous case law on Article 8 so far as concerns the need for a structured approach. In particular, they do not disturb the need for judges to ask themselves the five questions set out in Razgar  UKHL 27. Sections 117A-117D are essentially a further elaboration of Razgar’s question 5 which is essentially about proportionality and justifiability.
(2) It is not an error of law to fail to refer to sections 117A-117D considerations if the judge has applied the test he or she was supposed to apply according to its terms; what matters is substance, not form.