The High Court has endorsed the controversial approach of the Upper Tribunal towards the new immigration rules on human rights. Mr Justice Sales, drawing on concessions made by the Home Office, has found that the correct approach is a two stage one whereby the rules must first be considered and then human rights must be separately considered afterwards. The case is R (on the application of Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin).

Home Secretary Theresa May has forcefully argued outside the legal arena that this is the wrong approach and that judges following this two stage approach are somehow frustrating the will of the people. She specifically singled out the Upper Tribunal case of Izuazu for criticism along with ‘a minority of judges’. So far it is very much the majority of judges who have sided against her absurd legal position, in fact. The front line officials representing the Home Office in the immigration tribunal have been instructed to argue that the two stage approach is incorrect: the advocacy equivalent of the charge of the Light Brigade. It is therefore a little surprising to see that the Home Office has comprehensively now accepted that the two stage approach propounded in Izuazu is the right one:

28. As appears from the new guidance issued by the Secretary of State in relation to exercise of her residual discretion to grant leave to remain outside the Rules, as set out above, and as Mr Peckover [senior official at Home Office] makes clear in his witness statement, the new rules contemplate that there will be some cases in which a right to remain based on Article 8 can be established, even though falling outside the new rules. Therefore, the basic framework of analysis contemplated by Lord Bingham in Huang continues to apply, as was recognised by the Upper Tribunal in Izuazu…

32. Ms Giovannetti made clear for the Secretary of State that in these proceedings it is not contended that the effect of the new rules is to restore an exceptional circumstances test equivalent to that rejected by the House of Lords in Huang (by reference to the old Immigration Rules) and by the Upper Tribunal in Izuazu (by reference to the new rules), by contrast with the position argued unsuccessfully by the Secretary of State in Izuazu: see [28], [47]-[50] and [58]. Rather, the Secretary of State accepts that the consideration of possible Article 8 claims arising outside the new rules involves broader consideration of cases by reference to the general factors and approach set out in the new guidance on her residual discretion set out above.

Sales J goes on to quote with approval the crucial passages of Izuazu, the only proviso to that guidance being that there is no need to consider Article 8 outside the rules if there is no arguable Article 8 case.

The guidance to which the judgment refers at paragraph 28 draws a clear link between an ‘exceptional’ case and a case where removal would be disproportionate under Article 8. Thus a free standing exceptionality test is not reintroduced separate to Article 8 cases, rather it is said by the Home Office that successful Article 8 cases will be exceptional. This matches the reasoning of Lord Bingham in Huang. Sales J expresses some concern that this reasoning might be wasted on “busy, hard-pressed officials who refer only to the label might not clearly keep in mind the detail of the policy, and the particular nuance that the policy gives to the notion of exceptional cases, in identifying them with cases of disproportionality under Article 8” and goes on to urge that:

Officials should take care to avoid a “tick box” approach, genuinely bear the policy guidance in mind and seek to stand back after working through the analysis required under the new rules so as to make an overall assessment of the facts to see whether there might be a good arguable case of disproportionality if leave to remain is not granted and, if there is, to examine that case with care to see whether removal would be justified. The reasoning in decision letters should seek to demonstrate that this reasoning process has indeed been gone through.

The facts of the case were, by the standards of other Article 8 cases, not the strongest. The Claimant had entered the UK from India in 2006 and was married to a British citizen. They had known of his precarious immigration status. There were no children and no reason or evidence had been put forward as to why the Claimant could not simply apply for entry as a spouse from abroad. Whether under the new immigration rules or the old ones, it looks from Sales J’s judgment to be a weak case doomed to fail. The Home Office must have been pleased it was identified as a test case.

Mr Zane Malik argued for the Claimant that the rules themselves were unlawful and that the individual decision was unlawful. Both grounds failed.

In addressing the argument on the extent to which the new rules define or delineate Article 8 Sales J held that the new rules cannot and do not purport to cover every eventuality:

26. But this judgment is not the place for an extended essay in the abstract on the width or narrowness of the margin of appreciation in any particular area of immigration law in relation to which Article 8 may apply. It is sufficient to note that in relation to both private life and family life, the new rules do not cover and provide for every conceivable case in which the Secretary of State may be found to be subject to an obligation under Article 8 to allow a foreign national to remain in the United Kingdom. By reason of the sheer variety of human life and family associations and the wide application of the immigration regime and Article 8 – which carries with it the need for a degree of flexibility to make suitable accommodation for individual cases reflecting that variety – there will always be the possibility in principle for particular factors in individual cases to be of especially compelling force in favour of a grant of leave to remain even though not fully reflected in the new rules.

He held that because there is a two stage process for considering Article 8 cases, the rules themselves are not unlawful:

36. Therefore, in my judgment, the Claimant’s challenge to the lawfulness of the new rules fails. No matter how closely, or not, the new rules track the detailed application of Article 8 in individual cases, the immigration control regime as a whole (including the Secretary of State’s residual discretion) fully accommodates the requirements of Article 8. The fact that the new rules do not do that in all cases by themselves does not render them unlawful.

The judge goes on to reiterate yet again that whether there are ‘insurmountable obstacles’ to relocating abroad is not the test to be applied in this type of Article 8 case, reminding us that if there are insurmountable obstacles that is likely to assist an applicant, but that an insurmountable obstacle of some sort is not a prerequisite to success.

Legally this outcome seems unimpeachable, and both ‘sides’ (if we ignore for a moment the unfortunate claimant made the subject of a test case) seem to have gotten what they wanted. Politically, Theresa May still seems to have every reason to pretend there is some sort of conflict between Parliament and the judges because it plays so well to the gallery. Tellingly, if there is silence it will only be because May has overstepped the boundaries of her role and been told to stop jockeying for position.