ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER
UPPER TRIBUNAL JUDGE STOREY &
UPPER TRIBUNAL JUDGE COKER
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DAVIS
LADY JUSTICE GLOSTER
| MF (NIGERIA)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Raza Husain QC, Duran Seddon and Navtej Singh Ahluwalia (instructed by Wilson Solicitors LLP) for the Respondent
Hearing dates: 16 & 17 July 2013
Crown Copyright ©
Master of the Rolls:
"The authority will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under article 8(2). There will, in almost any case, be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory; the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on."
"The reported cases are of value in showing where, in many different factual situations, the Strasbourg court, as the ultimate guardian of Convention rights, has drawn the line, thus guiding national authorities in making their own decisions. But the main importance of the case law is in illuminating the core value which article 8 exists to protect. This is not, perhaps, hard to recognise. Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant's dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant. The Strasbourg court has repeatedly recognised the general right of states to control the entry and residence of non-nationals, and repeatedly acknowledged that the Convention confers no right on individuals or families to choose where they prefer to live. In most cases where the applicants complain of a violation of their article 8 rights, in a case where the impugned decision is authorised by law for a legitimate object and the interference (or lack of respect) is of sufficient seriousness to engage the operation of article 8, the crucial question is likely to be whether the interference (or lack of respect) complained of is proportionate to the legitimate end sought to be achieved. Proportionality is a subject of such importance as to require separate treatment."
"In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test."
The new rules
"Deportation and Article 8
398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.
399. This paragraph applies where paragraph 398 (b) or (c) applies if –
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would not be reasonable to expect the child to leave the UK; and
(b) there is no other family member who is able to care for the child in the UK; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and
(i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and
(ii) there are insurmountable obstacles to family life with that partner continuing outside the UK.
399A. This paragraph applies where paragraph 398(b) or (c) applies if –
(a) the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK; or
(b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.
399B. Where paragraph 399 or 399A applies limited leave may be granted for periods not exceeding 30 months. Such leave shall be given subject to such conditions as the Secretary of State deems appropriate. Where a person who has previously been granted a period of leave under paragraph 399B would not fall for refusal under paragraph 322(1C), indefinite leave to remain may be granted."
"[u]sually, the Courts show deference to the judgement of the decision-maker. However, in the context of immigration decisions on A8, the Courts are impeded from doing so by the failure of the Immigration Rules to reflect any consideration of proportionality under A8."
"The intention is that the Rules will state how the balance should be struck between the public interest and individual right, taking into account relevant case law, and thereby provide for a consistent and fair decision-making process. Therefore, if the Rules are proportionate, a decision taken in accordance with the Rules will, other than in exceptional cases, be compatible with A8."
"Bringing A8 within the Rules will ensure consistency, fairness and transparency in decision-making. We will retain discretion to grant leave outside the Rules in genuinely exceptional cases where it is considered that the Rules will produce a disproportionate result. However, it is considered that those cases will be rare since the new Rules reflect the Government's view – which Parliament will be invited to endorse – of how the balance should be struck between individual rights under A8 and the public interests in safeguarding the UK's economic well-being in controlling immigration and in protecting the public from foreign criminals."
"The new Immigration Rules will reform the approach taken as a matter of public policy towards ECHR Article 8 – the right to respect for family and private life – in immigration cases. The Immigration Rules will fully reflect the factors which can weigh for or against an Article 8 claim. The rules will set proportionate requirements that reflect the Government's and Parliament's view of how individuals' Article 8 rights should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public against 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. Outside exceptional cases, it will be proportionate under Article 8 for an applicant who fails to meet the requirement of the rules to be removed from the UK."
"In determining whether a case is exceptional, decision-makers must consider all relevant factors that weigh in favour and against deportation.
"Exceptional" does not mean "unusual" or "unique". Decision makers should be mindful that whilst all cases are to an extent unique, those unique factors do not generally render them exceptional. For these purposes, exceptional cases should be numerically rare. Furthermore, a case is not exceptional just because the exceptions to deportation in Rule 399 or Rule 399A have been missed by a small margin. Instead, "exceptional" means circumstances in which deportation would result in unjustifiably harsh consequences for the individual or their family such that deportation would not be proportionate. That is likely to be the case only very rarely."
The decision of the UT
"37. Before, however, the judge can complete his or her judicial task it remains to assess whether the decision under the rules (if it is negative) is contrary to the appellant's Convention rights and that remains a (stage 2) question that must be asked by taking account of Strasbourg jurisprudence and, more importantly, domestic higher court authority as to what that jurisprudence means. Hence, if the application under the new rules of an "exceptional circumstances" (or an "insurmountable obstacles") test results in an appellant losing under the rules, it is still incumbent on us to ask whether that is consistent with his Convention rights as interpreted by our higher courts. If, in an Article 8 case, the decision-maker rejected the application under the new rules, having applied the "insurmountable obstacles" test, but the applicant shows that family life cannot "reasonably" be continued abroad, then our duty is to allow the appeal on human rights grounds. We are bound by higher court authority that the proper test for Article 8 purposes is "reasonableness": see VW (Uganda). The fact that the Strasbourg Court's jurisprudence continues to see "insurmountable obstacles" as a proper criterion does not alter this fact. As already noted, our duty is only to take account of Strasbourg jurisprudence and, whether the former might be thought by us to be inconsistent with higher court precedent binding on us, matters not.
38. Whilst for the above reasons we consider that we are obliged by primary legislation to continue (ordinarily) to adopt a two-stage approach, we acknowledge that in practice where Article 8 -specific provisions of the rules have application, the second stage assessment will take a different hue. It will now resemble that conducted under the rules to a greater or lesser extent. Clearly, if the new rules perfectly mirrored Strasbourg jurisprudence as interpreted by our higher courts, the second stage judicial exercise would largely cover the same canvas. The difficulty is that the new rules do not obviously constitute a perfect mirror. We do not seek in this decision to gauge the extent of the difference, but one particular difference is of great importance in the present case. This relates to their methodology. They do not set out in full the Boultif criteria (Boultif v Switzerland, 54273/00;  ECHR 497) as restated by the Grand Chamber in Maslov v Austria 1683/03;  ECHR 546 (see Appendix A ). It is possible to read the new rules as encompassing some of these criteria, but the decision-maker is not mandated or directed to take all of them into account."
"42.......Previously judges' understanding of the weight the Secretary of State attaches to the public interest side of the Article 8 balancing exercise had largely to be gleaned from the submissions of the Secretary of State in leading cases. It has fallen very much to the judicial system to give it form and content. In deportation cases involving foreign criminals s.32 of the 2007 Act gave clear parliamentary expression to the particular importance the Secretary of State attached to their deportation: see MK (deportation-foreign criminal-public interest) Gambia  UKUT 281 (IAC); AP (Trinidad and Tobago)  EWCA Civ 551 per Carnwath LJ; Gurung v Secretary of State for the Home Department EWCA Civ 62. Now more generally, greater specificity is given in the new rules as to what circumstances are seen to attract the greatest weight in respect of the public interest; the Secretary of State has now herself told us what factors she considers relevant and what weight at the general level she attaches to them. In particular, in the context of deportation of foreign criminals, the new rules set out thresholds of criminality (by reference to length of terms of imprisonment) so that the Article 8 private life claims brought by foreign criminals can only succeed (unless there are exceptional circumstances) if they not only have certain periods of residence but can also show their criminality has fallen below these thresholds.
43. That must and should properly inform our Article 8 assessment made in compliance with our s.6 obligations under the HRA. Whereas previously it has been open to judges, within certain limits, to reach their own view of what the public interest is and the weight to be attached to it, the scope for doing so is now more limited."
"79......We weigh against the appellant's case that it was not until F was around 13 years old that he became involved in her life and so his role as a de facto father must not be exaggerated in terms of her history. But for a child, especially one who has not had any involvement with her birth father for some considerable time, the present is much more important than the past. In our view, a key document in this case is the very recent report dated 15 September 2012 from independent social worker, Peter Horrocks giving his assessment of the importance to F of her relationship with the appellant. We know from the evidence (see in particular her statement of 7 September 2012) that F herself has said she regards the appellant as her de facto father and it seems to us that this recent report, paragraphs 4.8-4.9 in particular, corroborates this fact. This report also emphasises the pressure she would come under to devote time to helping with the care of her two maternal grandparents, both of whom have significant care needs.
80 It is our task as judges to seek, pursuant to our duty under s.6 of the HRA, to strike a fair balance. In considering the many factors in play in this case, we attach very significant weight to the serious view taken by the respondent of the appellant's criminality and poor immigration history (albeit, applying the Maslov criteria, it is clear that he has not reoffended for nearly 7 years and he has been assessed as being at low risk of re-offending). However, as against that we are confronted with a case in which the respondent has conceded that it would not be reasonable to expect his wife and daughter to accompany him to Nigeria to live as a family there. The case is also one in which the best interests of the child, F, are to have a de facto father as she grows up. Weighing all the evidence in the balance, we are satisfied that it would not be proportionate in 2012 to deport the appellant. It almost certainly would have been proportionate for her to have done so in earlier years before the appellant's relationship with F became established, but, as noted earlier, the Secretary of State did not actively pursue the appellant's deportation earlier which she could have done if his asylum application had been timeously processed."
The case for the Secretary of State
"….the Rules make a substantial difference to the case law and essentially restore the exceptional circumstances test disapproved of by the House of Lords in Huang v SSHD  UKHL 11,  2 AC 167 because their Lordships were considering a set of immigration rules that did not spell out the UK's response to Article 8 issues whereas the present rules before us do so."
"15. The material provisions of the rules reflect the very weighty public interest in favour of the deportation of foreign criminals, as defined in the 2007 Act. At paragraphs 399 and 399A, they identify the specific circumstances in which the weight to be attached to an appellant's family and/or private life are capable of outweighing that public interest.
16. They also provide that even where the criteria in paragraphs 399 and/or 399A are not satisfied, the public interest in deportation may be outweighed by "other factors" in "exceptional circumstances" (see paragraph 398).
17. Thus the rules provide an avenue for consideration of the proportionality of deportation on the individual merits of the specific case, having regard to all the circumstances.
20 Thus, the SSHD seeks permission to appeal on the basis that the UT erred in law:
(a) in considering there to be a need, or justification, for separate consideration of article 8, outside the context of the rules (" the two-stage test")"
"The new Rules do not seek to change the law. What they seek to do is properly to reflect the Strasbourg jurisprudence when applied to the deportation of foreign criminals. Hitherto, the Secretary of State was concerned that, in some cases, caseworkers and/or the Tribunal were taking decisions which failed properly to reflect the Strasbourg jurisprudence in two main respects: (i) failing adequately to take account of the important public interest in deporting foreign criminals, as identified by Parliament; and (ii) failing to apply a sufficiently high threshold when undertaking the Art.8 proportionality balance, given the margin of appreciation afforded to States in this context.
The change implemented by the new Rules is to bring greater clarity and certainty to the decision making process so as to avoid repetition of these errors and achieve consistency of decision making.
The new Rules seek to achieve this objective in two principal ways: (i) by listing, in paragraphs 399 and 399A, categories of case which, on a proper analysis of the Strasbourg jurisprudence, deportation would be disproportionate under Art.8; and (ii) by borrowing from the Strasbourg court the phrase 'exceptional circumstances' which the ECtHR has used to connote a high threshold in certain Art.8 cases, and which, when interpreted in the context of the other provisions of the new Rules, reflects the public interest in deporting foreign criminals in the category of cases to which it applies".
The facts of this case