The Upper Tribunal has rejected the Government’s attempt exhaustively to define the scope and meaning of Article 8 private and family life in the controversial new immigration rules introduced in July 2012. The case is  MF (Article 8 – new rules) Nigeria [2012] UKUT 00393 (IAC) and the result will be no surprise to any lawyer.

In short the tribunal holds that immigration judges must start their determination of a human rights case by deciding the case under the immigration rules, including the rules that purport to define Article 8. If the case does not succeed under the rules the judge must go on and decide the case under what we might term ‘real Article 8’, as required by s.6 of the Human Rights Act 1998 and the Convention itself. However, the changes to the rules and measures such as the introduction of time periods before residence will be granted do shift the terms of the debate and make clear the added importance the Secretary of State now attaches to deporting foreign criminals.

The determination only deals implicitly with the Home Office’s contention that the new rules also define the best interests of children. No reference is really made to this silly argument other than to record that the tribunal did in fact have to assess the best interests of the affected child and to treat these best interests as a primary consideration.

The headnote to the case is quite comprehensive:

1. Prior to the new immigration rules (HC 194) introduced on 9 July 2012, cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against was in accordance with the immigration rules; (2) second to assess whether the decision was contrary to the appellant’s Article 8 rights.

2. The new immigration rules set out a number of mandatory requirements relating to claims reliant on Article 8 (“Article 8 claims”) which make clear that if such requirements are not met, the Article 8 claim under the rules must be refused. They also contain related provisions which confer discretion but it is discretion to grant leave in response to an Article 8 claim only if the new mandatory requirements are met. 

3. Whenever the new rules have application judges are obliged to consider whether an appellant can show he meets the relevant requirements (s.86(3)(a) of the Nationality, Immigration and Asylum Act 2002). Where the new rules afford some related discretion, judges are obliged to consider whether that discretion should have been exercised differently (s. 86(3)(6)). However, what judges are doing when they are conducting this exercise is simply applying the rules: the rules are the rules: see paragraph 10 Mahad[2009] UKSC 16.  The fact that these rules in part refer expressly to Article 8 or to certain Article 8 concepts is incidental.  The fact that as a result of these changes the rules are longer and incorporate some of the vocabulary of Article 8 makes no difference.

4. Because for most purposes the immigration rules must be given legal effect (see Odelola  [2009] UKHL 25), their requirements for applicants making an Article 8 claim to show “exceptional circumstances” or “insurmountable obstacles” are to be understood as legal requirements in the same way as any other mandatory requirements of the rules.

5. However, the new rules only cover Article 8 claims brought under some, not all, Parts of the Rules and only accommodate certain types of Article 8 claims.

6. Even if a decision to refuse an Article 8 claim under the new rules is found to be correct, judges must still consider whether the decision is in compliance with a person’s human rights under s.6 of the Human Rights Act ( see s.84(1)(c), (g) and (e) and s.86(2) and (3) of the 2002 Act) and, in automatic deportation cases, whether removal would breach a person’s Convention rights (s.33(2) UK Borders Act 2007). Thus in the context of deportation and removal cases the need for a 2 stage approach in most Article 8 cases remains imperative because the new rules do not encapsulate the guidance given in Maslov  v Austria App no.1683/03 [2008] ECHR 546, which has been endorsed by the higher courts.

7. When considering Article 8 in the context of an appellant who fails under the new rules, it will remain the case, as before, that “exceptional circumstances” is not to be regarded as a legal test and “insurmountable obstacles” is to be regarded as an incorrect criterion.

8. However, as a result of the introduction of the new rules, consideration by judges of Article 8 outside the rules must be informed by the greater specificity which they give to the importance the Secretary of State attaches to the public interest. For example, the new rules set out thresholds of criminality by reference to terms of imprisonment so that Article 8 private life claims can only succeed if they not only have certain periods of residence but can also show their criminality has fallen below these thresholds.

The tribunal also for good measure rejects the supposedly retrospective effect of the new rules, which purport to apply new rules to decisions that had already been taken but without issuing new decisions or reason.

The appeal was allowed in this case under the real Article 8.