23 Mar 2017, 49 mins ago

On 9 July 2012 the Government introduced changes to the Immigration Rules, which sought to bring Article 8 of the European Convention on Human Rights, the right to respect for family and private life, within the ambit of the rules. In a Statement of Intent issued at the time, the Government said,

“First, we shall end the situation where those claiming the right to enter or remain in the UK on the basis of ECHR Article 8 – the right to respect for private and family life – do so essentially without regard to the Immigration Rules. The new rules will reflect fully the factors which can weigh for or against an Article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government’s and Parliament’s view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis.”

The scope of Article 8 as defined in the new Immigration Rules is considerably narrower than Article 8 as developed by the European Court of Human Rights and the domestic courts, and introduces a legal requirement (previously rejected by the courts) that applicants must show “exceptional circumstances” or “insurmountable obstacles” to succeed in their claims. Practitioners therefore took the view that the domestic courts were unlikely to accept that Article 8 was exhaustively defined by the new Immigration Rules, particularly as it is unlawful under section 6 of the Human Rights Act 1998 for public authorities to act in a way which is incompatible with a Convention right. There have now been two Upper Tribunal cases in which this view has proved to be correct.

The first case was MF (Article 8-new rules) Nigeria [2012] 00393 (IAC), promulgated on 31 October 2012. The tribunal found that the introduction of the new rules meant that consideration of Article 8 claims is now a two-stage exercise. Judges are first obliged to consider whether an Article 8 claim succeeds under the Immigration Rules. If the decision to refuse the claim under the rules is found to be correct, judges must then consider whether the decision is in compliance with a person’s human rights under s.6 of the Human Rights Act, and apply the broader definition of Article 8.

That decision has now received ringing support from a tribunal chaired by the President in Izuazu (Article 8 – new rules) [2013] UKUT 00045 (IAC), promulgated on 29 January 2013, in which it specifically endorsed the approach in MF. It also pointed out in its head note:

“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.”

These decisions are welcome for obvious reasons. However, it now seems likely that for the foreseeable future the Home Office will restrict its consideration of Article 8 claims to its own narrow definition as contained in the Immigration Rules. In doing so, it will be acting unlawfully as it will be acting in a way that is incompatible with the European Convention. Some applicants who should succeed in their Article 8 claims will therefore be forced to appeal to the First-tier Tribunal in order to obtain a correct and lawful decision.

Of course, one way in which the Government could seek to impose its definition of Article 8 upon the domestic courts would be by putting it into primary legislation. However, to do so would create a rift with the Council of Europe and would no doubt lead to adverse judgements in the European Court of Human Rights. It remains to be seen how far along this road the Government is prepared to go.