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‘Form not substance’: Deport rules do not change the law
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Theresa May spent over a year saying her new immigration rules would weaken Article 8 rights for “foreign criminals” but conceded the point within a day at the Court of Appeal.
MF (Nigeria) v SSHD  EWCA Civ 1192 makes clear that the Immigration Rules governing deportation now provide a ‘complete code’ for the Article 8 rights of foreign criminals. But they do not change the substantive law relating to Article 8 proportionality assessments and do not create a legal test of exceptionality for succeeding where the Rules are not met.
For all the Secretary of State’s rhetoric when introducing the immigration rule changes of July 2012 – “it is my job to deport foreigners” – there was a dramatic concession by the Government halfway through the two-day hearing. Pressured by the Master of the Rolls Lord Dyson to declare her position, Counsel for the Home Office finally accepted that “The rules do not change the law”.
The Court still went on to consider the effect of the new provisions in Part 13 of the Rules and in particular whether they altered the approach the Tribunal should take to deportation appeals in which reliance is placed on Article 8 ECHR.
The changes had been intended by the Secretary of State to reflect her view of how the Article 8 balance should be struck when dealing with deportation cases. They set out somewhat arbitrary circumstances in which the deportation of foreign criminals would be considered a disproportionate breach of their Article 8 rights. If a foreign criminal does not meet those criteria then the public interest in deporting them would only be outweighed in ‘exceptional circumstances’.
By using the phrase ‘exceptional circumstances’ in the Rules, it seemed the Secretary of State was attempting to reintroduce a legal test of exceptionality in order to succeed under Article 8 where the Immigration Rules were not met. Such a test had previously been rejected by the House of Lords in its landmark judgment in Huang v SSHD  UKHL 11,  2 AC 167. The Secretary of State appeared to be trying to roll back all of the Article 8 protections that have emerged from the caselaw that developed since then.
The attack on Article 8 was rebuffed in MF’s case before the Upper Tribunal. The UT refused to accept that the effect of the new Rules was to destroy all the post-Huang Article 8 jurisprudence. Although it accepted that the new Immigration Rules did reintroduce a legal test of exceptionality, it considered that there was still a ‘two-stage test’ required before dismissing an appellant’s appeal.
The first stage was to see if an appellant met the Immigration Rules, including qualifying under the ‘exceptional circumstances’ test. The second stage, though, was still to consider Article 8 ECHR on a freestanding basis outside the Rules, applying all of the traditional Article 8 principles in domestic and Strasbourg jurisprudence. Thus the Secretary of State’s attempt to use the Immigration Rules to define the limits of Article 8 ECHR protection was thwarted.
Before the Court of Appeal, it was thought that the Secretary of State would, for the first time before the higher courts, defend her position that the new Immigration Rules represented a complete code and reintroduced a legal test of exceptionality. Instead, she backtracked.
Armed with the Secretary of State’s concession to reality, the Court of Appeal nevertheless expressed the view that the Immigration Rules could now be considered a ‘complete code’ for the consideration of Article 8 ECHR claims for foreign nationals facing deportation. However, importantly, the Court of Appeal made clear that the new Rules do not change the law and that all of the previous Article 8 domestic and Strasbourg jurisprudence still applies. The Court of Appeal was explicit that the new Immigration Rules did not reintroduce a legal test of exceptionality for an Article 8 claim to succeed.
You might wonder how the Court of Appeal could call the Rules a “complete code”, given that the Immigration Rules plainly do not reflect all of the Article 8 caselaw and explicitly refer to ‘exceptional circumstances’.
The answer lies in the Court’s approach to the phrase “exceptional circumstances” as it appears in the new Rules, finding the same factors that would make the expulsion of a person disproportionate on a traditional Article 8 analysis (incorporating all of the post-Huang jurisprudence) would also constitute ‘exceptional circumstances’ within the current Immigration Rules.
So if it’s disproportionate to remove someone it will ipso facto be a case that showed ‘exceptional circumstances’ for the purposes of the Rules, but a case need not be exceptional in the pre-Huang sense to be disproportionate.
The Court of Appeal still applied a ‘two-stage test’, but it viewed the phrase ‘exceptional circumstances’ as being the gateway for consideration of Article 8 ECHR fully within the Immigration Rules, rather than as a separate head outside of the Rules. In that sense, the Court of Appeal adopted a different approach from the Upper Tribunal; but the difference, the Court observed, was one of ‘form and not substance’.
It may be tempting for some over-zealous Presenting Officers (and indeed some Tribunals) to be confused by the Court of Appeal’s decision and consider that the use of the phrase ‘exceptional circumstances’ should best be given its ordinary everyday meaning. But practitioners can be confident that no legal test of exceptionality has been reintroduced by seeing the manner in which the Court of Appeal dealt with the case of MF on its own facts.
MF, it was accepted, was not a unique case – it was one that would have failed the pre-Huang legal test of exceptionality. The Upper Tribunal allowed MF’s appeal against deportation on Article 8 ECHR grounds outside the Immigration Rules. The Court of Appeal did not interfere with that outcome, holding that a proper construction of the phrase ‘exceptional circumstances’ (essentially equating to an Article 8 proportionality assessment) would have led to the same result – just within the Immigration Rules, rather than outside them.
The defence of traditional Article 8 ECHR rights has withstood the Government’s latest assault. But primary legislation – as embodied in the ‘public interest’ provisions of the new Immigration Bill – could be about to begin a new phase of attack.
MF was represented by Raza Husain (Matrix Chambers), Duran Seddon and Navtej Ahluwalia (Garden Court Chambers), instructed by Wilson Solicitors LLP. For a full case-note on the Garden Court Chambers site, click here.