GOOD NEWS: Izuazu (Article 8 – new rules) Nigeria  UKUT 00045 (IAC)
The Upper Tribunal has concluded that new Immigration Rules do not adequately reflect the Secretary of State’s obligations under Article 8 of the ECHR.
This is the second determination of the “fit” between the immigration rules, introduced last year, and the UK’s obligations under Article 8 of the Convention. The Tribunal’s assessment of the rules in MF (Article 8–new rules) Nigeria  UKUT 00393 (IAC) held there that the new rules fall short of all Article 8 requirements.
The claimant was a Nigerian national who had raised a claim to private and family life under Article 8 of the European Convention on Human Rights as part of a claim for asylum. She had travelled to the UK previously, with periods of overstaying and having obtained employment by using false identity papers. Whist in the UK she met her husband, a dual British/Nigerian citizen and argued that her removal would interfere with her right to family life under Article 8.
The Secretary of State refused her asylum application and gave consideration to her family life claim. This was considered with reference to the new Immigration Rules (HC 194) and also under Article 8. The Secretary of State refused her application, stating that there were no insurmountable obstacles to family life continuing outside the UK.
On appeal, the Immigration Judge considered her claim to family life with reference solely to Article 8. The appeal was allowed on the basis that it would be unreasonable to expect her husband to leave the UK and to travel to Nigeria in order to continue the family life.
The Secretary of State appealed the determination of the Immigration Judge on a number of grounds, principally on the basis that the Judge should have considered the appeal with reference to Appendix FM (Family Members) of the Immigration Rules and that the Judge was wrong to impose a test of ‘reasonableness’ when the Judge ought to have considered whether there were any ‘insurmountable obstacles’ preventing the family life from continuing outside the UK.
The Secretary of State submitted that the new Immigration Rules
Provide a clear basis for considering immigration family and private life cases in compliance with Article 8 of the European Convention on Human Rights.
The Upper Tribunal rejected this particular argument in relation to the Rules, but accepted that the Secretary of State’s decision to turn down the claimant was in accordance with the rules and the applicable policy and is not unlawful. Her decision was taken in support of a legitimate aim of protecting public order and the rights and freedoms of others, was a proportionate and fair balance in all the circumstances and thus a justified interference with Article 8 rights. The Secretary of State’s appeal was therefore upheld.
Reasoning behind the Upper Tribunal’s ruling
The Immigration Rules, as statements of executive policy, cannot override the legal duty imposed by statute (such as the Human Rights Act 1998) or the existing case law of the higher courts and the Upper Tribunal itself. This was established in the earlier decision in MF Nigeria  UKUT 00393 (IAC).
Whilst the Tribunal concluded that Appendix FM does not adequately reflect the obligations placed on Immigration Judges under Article 8 and the established case law, the Immigration Rules will still be taken into account when considering whether the immigration decision is a justified interference with the right to family and/or private life:
The provisions of the rules or other relevant statement of policy may again re-enter the debate but this time as part of the proportionality evaluation. Here the judge will be asking whether the interference was a proportionate means of achieving the legitimate aim in question and a fair balance as to the competing interests…. The weight to be attached to any reason for rejection of the human rights claim indicated by particular provisions of the rules will depend both on the particular facts found by the judge in the case in hand and the extent that the rules themselves reflect criteria approved in the previous case law of the Human Rights Court at Strasbourg and the higher courts in the United Kingdom.
The Tribunal did not accept that the criteria set out in the new rules accord with the criteria for an Article 8 assessment established by the existing case law. Once such issue was the best interests of any minor resident children, a principle which is not reflected in the provisions of the Appendix FM.
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…’
The Secretary of State submitted that Parliament’s approval of HC 194 seemed to be an attempt to approximate the rules to a statutory assessment of the balance between competing interests. The Tribunal on the other hand could not accept such an elevation, for several reasons:
1. The Immigration Rules and supplementary instructions are not the product of active debate in Parliament
2. Only the Parliamentary process for primary legislation permits a clause by clause discussion of the measures, with opportunity for amendments and revision.
3. The procedure adopted here provided a weak form of Parliamentary scrutiny
4. There may have been a debate about the new rules in the House of Commons but Commons is not Parliament and it has long been the law that a resolution of the House of Commons is not given supremacy akin to primary legislation by the court
A claimant who relies on Article 8 will by definition have failed to succeed under the rules but may succeed under the law on Article 8 grounds despite the provisions of the rules. A failure to comply with the rules thus remains the starting point of the Article 8 inquiry and not its conclusion.
For a human rights exception within Appendix FM of the Immigration Rules to apply, the Secretary of State submitted that the claimant must show that there are ‘insurmountable obstacles’ to the family life from continuing outside the UK. The UT objected to this “one size fits all” approach. It is not possible to apply one set of criteria, such as whether there are ‘insurmountable obstacles’ to these divergent cases, where the case law indicates that a fact sensitive assessment is necessary. The House of Lords deprecated the test of exceptional circumstances in Huang  UKHL 11.
There is no test of insurmountable obstacles under Article 8 of the ECHR:
In our judgment, to reject a claim under Article 8 because the test of insurmountable obstacles is not met as the Secretary of State did at  above is to fail to comply with principles of the established law .
It was 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. So there could be no presumption that the Rules would normally be conclusive of the Article 8 assessment or that a fact sensitive inquiry is not normally needed. Indeed, the conclusion under the Rules may often have little bearing on the judge’s own assessment of proportionality. The Secretary of State may decide to only grant leave to remain in cases where there would be insurmountable obstacles to the family relocating to any country but the judge is unlikely to give weight to that factor in the proportionality assessment if he or she concludes that the obstacles to relocation are substantial and in the circumstances it would not be reasonable to expect the other family members to relocate there, whether for reasons of nationality, length of residence, the best interest of the child or otherwise. If there is no presumption that the provisions of the rules reflect and apply the balance between the competing considerations, “exceptional circumstances cannot be the test to be applied under the law”.