Article 8 After Agyarko: The Correct Approach

TZ (Pakistan) and PG (India) v Secretary of State for the Home Department [2018] EWCA Civ 1109 (17 May 2018)

These appeals were heard after the Supreme Court’s decision in R (Agyarko) [2017] UKSC 11 (see here) which made it clear that the scheme established by the overhauled Immigration Rules and associated instructions was lawful and compatible with article 8 of the ECHR. Overall, Agyarko not only entitles the Home Office to lawfully apply a test of insurmountable obstacles to the relocation of the family within the rules, it also permits the application of a test of exceptional circumstances outside the rules. In the present judgment the Court of Appeal held that while the courts are able to review the compatibility of the balance of factors that the executive strikes in devising the rules, the judiciary must nonetheless remember that the constitutional responsibility for policy lies with the executive and the fact that the rules are not and are not intended to summarise the Strasbourg jurisprudence. The first appellant, TZ, entered the UK aged 20 as a Tier 4 (General) student and was granted further leave to remain as a student until November 2012. He then met his partner AS while working part-time and they moved in together. After completing his accounting and finance degree he was offered a managerial job. He received a further two-year Tier 1 (Post-Study Work) visa but later his Tier 2 (General) application was refused in March 2014 because of an error in the Certificate of Sponsorship (CoS).

The CoS supplied by his employer contained an inaccurate occupation code with the result that no points were awarded to him for “sponsorship”. TZ failed to score at least 50 points in the “Attributes” section of Appendix A to the rules for Tier 2 (General) applicants. He conceded in his FTT appeal that the wrong occupation code had been provided. He advised the FTT that he was in the process of submitting a fresh application with the correct code. But he simultaneously invoked article 8 to pursue his appeal by asserting that his removal would cause his partner financial hardship and she could not join him in Pakistan because the community would reject her. In October 2014, the FTT determined that without the CoS the Tier 2 (General) application was bound to fail. Applying the rules, the judge dismissed the article 8 point by reference to paragraph 276ADE and Appendix FM because TZ had not established insurmountable obstacles to the continuation of family life outside the UK. The FTT’s approach on article 8 outside the rules was less precise but the appeal was dismissed because the interference caused was proportionate in light of the legitimate public aim of maintaining effective immigration control. The matter then proceeded into the UT.

In addition to failures of reasoning connected to paragraph 276ADE and Appendix FM, the UT found that the FTT had also ignored the principles in Chikwamba [2008] UKHL 40 and MA (Pakistan) [2009] EWCA Civ 953 when considering insurmountable obstacles to family life. In its decision of July 2015, the UT concluded that the FTT’s errors on the rules did not represent material errors of law because a proper application of the rules would have culminated in the same decision. Overall, the UT held that exceptional circumstances would have to exist for the FTT’s conclusion to be any different. No such circumstances had been identified. Essentially, it was apparent that had a careful examination of the facts been undertaken, permission to appeal to the UT should not have been granted in the first place.

The second appellant, PG, arrived in the UK from India as a visitor in July 2012. She re-entered in September 2013 again as a visitor. Soon afterwards she met Mr Nayee, a British national of Indian lineage, and they married in November 2013. She made an in-time application for further leave to remain as the spouse of a British national in January 2014. She was pregnant when the UT hearing occurred and the couple’s first child was born subsequently.

The FTT determined that PG faced insurmountable obstacles to her family life with her spouse continuing outside the UK for the purposes of paragraph EX.1(b) of the Immigration Rules. This was so because PG’s husband’s evidence was compelling as regards his lack of links to India, its language, culture and community. Her husband stressed that since her marriage PG had been the sole carer of her mother-in-law who suffered from medical problems rendering her unable to cope with life alone even in performing basic functions such as feeding herself. All this was strengthened by his commitment to stay in the UK for his mother’s wellbeing who was too unwell to move elsewhere. Given the outcome on paragraph EX.1(b), the FTT did not consider it relevant to dwell on paragraph 276ADE(1) or freestanding article 8.

Subsequently, however, the UT reversed the FTT’s decision because it materially erred in law by thinking that paragraph EX.1(b) applied in aid of PG’s appeal, when in fact she could not satisfy the provisions of the Immigration Rules because of her precarious immigration status. The real position was that she could only rely on an article 8 claim outside the rules. The point was decided against PG because considerable weight needed to be given to her precarious immigration status at the time of marriage. So as to liberate her husband to join her in India, her mother-in-law’s care could be divided between professional carers and her sister-in-law. The UT concluded that there was nothing untoward about making PG return to India to apply for entry clearance as a spouse. Thereafter, the case proceeded onward on the interpretation of Agyarko.

The Court of Appeal

Sir Ernest Ryder (Senior President of Tribunals) and Longmore and Moylan LJJ dismissed both appeals. The court was unimpressed with the allegations made by the appellants and found the executive’s points of resistance to be helpful and valid.

(i) Article 8: Relevant Factors

The government’s position was that (a) both cases concerned foreign nationals who commenced relationships in the UK when they were well aware that their immigration status was precarious, (b) neither appellant qualified for leave to remain under the rules, (c) neither appeal involved exceptional circumstances to place it in the small class of cases in which leave to remain outside the rules should have been granted in order to avoid a breach of article 8, and (d) Lord Reed’s judgment in Agyarko had fully propounded the principles to dispose of all the issues in these appeals.

On the other hand, TZ and PG sought to persuade the court that important issues remained outstanding on the application of the principles in Agyarko. But Sir Ernest Ryder was very dismissive about the need to put any gloss on Lord Reed’s reasoning. Equally, he reiterated the adoption of the “balance sheet” approach articulated by Lord Thomas in Hesham Ali [2016] UKSC 60 (see here). The court was in no mood to give obiter guidance on 11 hypothetical questions which the appellants claimed would inform proper decision-making in the tribunals or assist the future application of the principles in Agyarko. It was futile for the appellants to raise new points on appeal without first pursuing them in the tribunals.

The court reiterated that the structure of decision-making in the context of the present appeals firstly involves consideration being provided to the relevant provisions of the rules and secondly concerns consideration being provided outside the rules to assess whether removal would result in a breach of article 8. Moreover, Sir Ernest Ryder remarked that:

23. The Secretary of State has a constitutional responsibility for the immigration policy which underpins the Immigration Rules which are endorsed by Parliament: they are the competent institutions responsible for determining policy within the national margin of appreciation.

It was open for the courts to review the compatibility of the balance of factors that the executive strikes in formulating the rules. Agyarko leaves no doubt that courts and tribunals must respect the constitutional responsibility for policy and the fact that the rules are not and are not intended to be a summary of the Strasbourg jurisprudence. Therefore, it is lawful to set a requirement within the rules specifying the test of insurmountable obstacles to the continuation of family life in the country of proposed return.

The Court of Appeal recalled that the Immigration Directorate Instructions accept that situations arise outside the rules in which it would be necessary to grant leave to remain to avoid breaching article 8. The official policy only allows leave to be granted in exceptional circumstances, in other words circumstances must arise in which refusal would produce unjustifiably harsh consequences for the person concerned. In Agyarko the legality of the policy and the test was upheld.

Cases such as Jeunesse v The Netherlands (2015) 60 EHRR 17 demonstrate that applying the settled Strasbourg jurisprudence it is only likely in an exceptional case that article 8 would necessitate a grant of leave to remain where a non-settled migrant had commenced family life in the UK at a time when his or her immigration status was precarious. That general principle applies when considering article 8 both within and outside the rules. Since article 8 does not guarantee a right to choose one’s country of residence, the existence of precariousness affects the weight to be attached to family life in the balancing exercise because unlawful overstayers and temporary migrants have no right to remain in the UK simply by entering into a relationship with a British citizen during their unlawful or temporary stay. The Supreme Court acknowledged this point in Agyarko and Lord Reed enunciated the statement of principle that:

57. In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control.

The concept of precariousness captures both those present unlawfully and temporarily and to that extent the decision in Rhuppiah [2016] EWCA Civ 803 was binding on the Court of Appeal. Moreover, section 117B of the Nationality, Immigration and Asylum Act 2002 (as amended) also impacted upon the weight to be given to private and family life that is established at a time when someone’s immigration status is precarious. The court noted that statute identifies that all claims with an article 8 element either on the rules or outside their ambit must be assessed against an applicant’s precarious immigration status. Overall, a precarious status means that little weight is to be given to private life or to a relationship formed with a qualifying partner. It is also significant that section 117B requires that an applicant’s ability to speak English and financial independence must also be taken into account in every article 8 consideration. Sir Ernest Ryder went on to explain:

28. The consideration of article 8 outside the rules is a proportionality evaluation i.e. a balance of public interest factors. Some factors are heavily weighted. The most obvious example is the public policy in immigration control. The weight depends on the legislative and factual context.

Moreover, as Agyarko shows, unlawful and temporary presence and the reasons underpinning such presence affect the weight to be given to the public interest in removal and the weight to be given to family and/or private life. Chikwamba and EB (Kosovo) [2008] UKHL 41 illustrate how the weight or cogency of the public interest is affected. Factors identified by the Strasbourg jurisprudence, such as protracted delay and the banishment of a British citizen spouse, are to be given weight when considering the proportionality of interference with article 8 outside of the rules.

Despite accepting that the list of circumstances is not limited, the court rejected the invitation to hypothetically apply the authority of Alim v Russia (2011) ECHR 1453 to examine the legality of the executive’s policy of excluding partnerships of less than two years. In Alim family life was “not confined to marriage-based relationships and may encompass other de facto family ties where the parties are living together” but the comparison was out of place. Sir Ernest Ryder opined that factual symmetry with the principles in Alim warranted evaluating article 8 outside of the rules bearing in mind the official policy on the issues within the rules.

He recalled Lord Reed’s point that when undertaking an article 8 evaluation outside the rules, in striking a proportionality balance a tribunal must take the executive’s policy into account and attach substantial weight to it “at a general level”. The court held that a tribunal’s determination on a decision that is within the rules might not involve the consideration of an article 8 element because other aspects of the rules might not be satisfied, meaning that the appellant could not come within the rules. On the other hand, in cases where article 8 is engaged and consideration outside the rules is due the tribunal should consider the insurmountable obstacles test within the rules before considering the exceptional circumstances test outside the rules. The tribunal’s evaluation of whether there were insurmountable obstacles would be relevant to the question of exceptional circumstances.

In general, the key issue will be whether the strength of the article 8 claim and the related positive obligation on the state to permit the applicant to remain in the UK outweigh the strength of the public policy in immigration control in any given case. Razgar [2004] UKHL 27 does not displace “the need to undertake this critical balance.”

(ii) Correct Approach

The court also elaborated upon an “evaluative mechanism” that should be adopted by first instance tribunals that interlocks with the Supreme Court’s jurisprudence. The guidance serves the need to follow existing good practice across jurisdictions and addressed the failure to adequately describe the evaluative judgment undertaken in the reasoning in the present cases irrespective of the fact that the overall decisions were not incorrect.

Despite there being no obligation for a tribunal to structure its decision-making in any particular way, Sir Ernest Ryder endorsed the use of the structure proposed by Lord Thomas in Hesham Ali that after finding the facts the FTT should set out, in the form of a balance sheet, the factors that weighed in favour of immigration control (or the “cons”) against the factors weighing in favour of family and private life (or the “pros”). The FTT should use the balance sheet to produce a reasoned conclusion within the framework of the tests being applied within or outside the rules. Strongly recommending the formulaic approach proposed by Lord Thomas, the court proceeded to explain that:

35. It goes without saying that the factors are not equally weighted and that the tribunal must in its reasoning articulate the weight being attached to each factor.

Applying the above rationale to the present appeals, the court found nothing in either TZ or PG’s case which demonstrated exceptional circumstances so compelling that they outweighed the public interest in immigration control. The tribunal’s factual findings in TZ’s case were unassailable. In both cases, the UT had been right to hold that the principle in Chikwamba was not in play and the Court of Appeal therefore dismissed both appeals.

Comment

The Agyarko judgment is widely understood to have finally settled the point that the tests of insurmountable obstacles and exceptional circumstances are lawful. Of course, Lord Reed who authored the pioneering judgment in that case has just been appointed the Deputy President of the Supreme Court.

hearing is scheduled on 10 July 2018 in the apex court in Rhuppiah where Moore-Bick, Richards and Sales LJJ held in earlier proceedings that sections 117A to 117D of Part 5A of the 2002 Act do indeed provide a structured approach to applying article 8, which generally provides a final result which is compatible with article 8 rights. Hence no additional element in the proportionality balancing exercise under article 8 is needed.

Lords Wilson, Carnwath, Hughes, Lloyd-Jones and Lady Black will hear argument on critical issues such as (i) the meaning of precarious in section 117B(5), (ii) the weight to be given to private life established at a time when the appellant’s immigration status was precarious when conducting the article 8 balancing exercise, and (iii) the weight to be given to financial independence and proficiency in English when conducting the article 8 balancing exercise.

I have already touched upon the ongoing proceedings arising out of Part 5A in relation to article 8 and the public interest here, here and here. Moreover, the ratio of Rhuppiah was subsequently approved in NE-A (Nigeria) [2017] EWCA Civ 239 because these statutory provisions contain more than a statement of policy to which regard is to be given as a relevant consideration. There is therefore no room for any additional element in the proportionality balancing exercise pursuant to article 8.

An important point made in the present proceedings is that the rules are not and are not intended to summarise the Strasbourg jurisprudence. Indeed, this makes interesting comparative reading with Parveen [2018] EWCA Civ 932 where Underhill LJ was highly frustrated by events and quite understandably chided those engaging in poor levels of representation who pointlessly dwell on the uncountable reported authorities without actually bothering to spell out the details of the applicant’s particular circumstances.

Of course, negligent mass production only enhances the potential for betraying the duty to the court and to the client. Sadly, immigration cases tend to suffer a lot because of poor representation from both sides. Personally, I can only agree with Underhill LJ because if you follow the correct approach and if your pleadings and witness statements are perfectly written and the accompanying evidence is properly presented then you should be able to win the vast majority of cases without a problem. Judges tend to respond to high quality paperwork. Therefore, the pursuit of perfection is a great way to stand out from the crowd. Equally, the insurance of doing the extra work is well worth it if you really want to make a difference to people’s immigration predicaments on a case-by-case basis.

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appendix FM, Article 8, Court of Appeal, ECHR, Families, Human Rights Act, Immigration Act 2014, Immigration Rules, India, Pakistan, Proportionality, Public Interest, Tribunals, UKSC and tagged , , , , , , , , . Bookmark the permalink.

4 Responses to Article 8 After Agyarko: The Correct Approach

  1. Simon Barr says:

    Very useful commentary. The last paragraph really nails it! More thought and less ‘cut and paste’ creates focussed pleadings which make the salient points stand-out.

    • Thanks for commenting Simon. How odd that people representing clients in the Court of Appeal and Supreme Court should not know how to write proper witness statements and other legal documents. I can say that I have not lost a case in years whether it was an EU national with 24 years worth of offending resulting in a 9 year conviction in the Old Bailey or a mendacious Thai national who had used deception in her entry clearance application. We are winning everything!!!

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