The latest report by John Vine, the Independent Chief Inspector of Borders and Immigration, was published this week. It concerns applications to enter, remain and settle in the UK on the basis of marriage and civil partnerships and the summary of recommendations is that the UK Border Agency:

1. Assesses all relevant aspects of the Immigration Rules in marriage cases and ensures that this is done in a consistent manner.
2. Ensures that Human Rights are considered consistently in all relevant cases, including overseas applications.
3. Ensures that reasons for its decisions under both the Immigration Rules and Human Rights are properly evidenced, recorded and communicated to applicants.
4. Ensures that the best interests of the child are considered in all relevant cases and that these are expressly referred to in both notes and decisions to refuse applications.
5. Urgently addresses the backlog of 14,000 cases where an application for reconsideration has been made, and makes an initial decision in the 2,100 temporary migration cases.
6. Adopts a systematic approach to reviewing and analysing appeal outcomes in marriage cases in order to improve the quality of decisions.
7. Introduces processes to minimise the need for repeat PNC checks.
8. Develops a strategy on the use of interviews and home visits in marriage cases.

The following findings and observations can therefore be gleamed from the report:

• Article 8 of the ECHR is not being considered in every case;
• Some ECO’s did not think that they had to consider Article 8;
• Even when ECO’s do consider Article 8, this is often not case specific;
• The best interests of the child are not being considered in every case where there is a UK based child;
• In many cases, UKBA are not retaining documents or notes to enable a review of the decision.  Caseworkers are instructed that they should retain only documents of particular relevance to the decision.

It doesn’t surprise me to hear about the ECO comments relating to the assessment of Article 8.  In fact, I struggle to recall even one case when an ECO has considered Article 8 in relation to the specific facts of the application.

In relation to UK based applications, I was recently representing in an asylum appeal and we were relying on Article 8. The judge asked the Home Office Presenting Officer to make submissions on proportionality. The HOPO said that her instructions were to argue that, despite the case of MF (Article 8  – new rules) Nigeria [2012] UKUT 00393 (IAC), the new immigration rules incorporated Article 8 fully and correctly and that in any event MF was under appeal. Therefore, it was argued, the ‘real’ Article 8 should not be considered by the judge at all, and the HOPO would say no more. This seems to be a standard submission Presenting Officers have been instructed to make.