The Upper Tribunal has yet again rejected the government’s contention that new Immigration Rules define and delineate the extent of the United Kingdom’s human rights obligations. The latest case is Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) but it follows on from two other recent determinations, Izuazu (Article 8 – new rules) [2013] UKUT 45 (IAC) and MF (Article 8 – new rules) Nigeria [2012] UKUT 00393 (IAC).

Together, these cases represent a demolition of the Government’s attempts to gain exclusive ownership over Article 8 of the European Convention on Human Rights, the right to a private and family life. The cases do, however, recognise that the hard official line against private and family life has an impact on the way that the tribunal must assess proportionality. Perhaps most interestingly and rather counter-intuitively, the cases may reduce the chances that some of the coming challenges to the lawfulness of the new rules in the higher courts will succeed. By carving out a proper human rights exception to the new rules the courts will perhaps be able to avoid giving Theresa May the satisfaction of a full declaration of incompatibility under section 4 of the Human Rights Act: if the new rules did oust a genuine human rights assessment then they would be incompatible, but being as they are only immigration rules and not even legislation as such, they cannot override statutory obligations that continue to apply and continue to oblige a full human rights assessment.

In MF the tribunal held that the existence of new rules which purport to prevent any separate consideration of human rights could not absolve the tribunal from its statutory duty imposed by Parliament in primary legislation to consider ‘real’ (my quotation marks not theirs) human rights as understood and evolved by the jurisprudence of the European Court of Human Rights and the domestic courts. A full and fact sensitive human rights assessment was not ousted by the new rules and the task of an immigration judge was still a two stage one. In a case raising human rights issues the judge must first consider and apply the immigration rules, including the new ones. If the case fails at this stage then the judge must still go on to undertake the traditional separate human rights assessment. In carrying out this traditional assessment the concepts established by case law must be applied, such as whether barriers to relocation to another country are unreasonable obstacles rather than insurmountable ones.

In Izuazu the tribunal went further. MF was endorsed and given the imprimatur of the President, but the tribunal went on to say that the new rules establish no presumption as to the outcome of the traditional human rights assessment and that the more the new rules sought to displace a full, fact-based, individualised human rights assessment, the less weight would be given to those rules in the proportionality balancing exercise that must still be undertaken. The case is also interesting for the relative importance it was given by the appellant, who was represented by leading Counsel Raza Husain QC and Eric Fripp, and the respondent, who was represented by a woefully underprepared senior Presenting Officer, and for the two appendices attached. One consists of the further submissions by two leading and very clever immigration barristers. The other is a letter to the tribunal by a senior policy wonk at the Home Office about the new rules.

Ogundimu is the latest case in this growing collection. It involved an appeal from First-tier Tribunal judge Warren Grant, who had managed to conclude that over 20 years residence since the age of 6 did not even engage human rights considerations. This was quickly conceded by the Secretary of State to be an error of law.

The tribunal observes that the new rules make no attempt to reflect one of the most important Strasbourg decisions on deportation, that of Maslov v Austria [2008] ECHR 546 but that the ratio of that decision continues to apply: “for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in [this] country very serious reasons are required to justify expulsion.”

The case also raised the question of how far the new rules adequately address the best interests of children. New paragraph 399(a) of the rules provides that a relevant person must always be deported if there is another family member who is able to care for the person’s child. The tribunal observes that this is clearly inconsistent with primary legislation, a fully ratified international treaty and a Supreme Court decision: respectively section 55 of the Borders, Citizenship and Immigration Act 2009, the UN Convention on the Rights of the Child and ZH Tanzania [2011] UKSC 4.

The tribunal also offers interpretation of two different terms that arise in the new rules. The first is ‘insurmountable obstacles’, a test the meaning of which is unclear but which is in any event is satisfied where a British child cannot be expected to leave the UK because of his or her EU citizenship rights. The second is the use of the words ‘no ties (social, cultural or family)’ to the country of origin in new paragraphs 399A and 276ADE:

The natural and ordinary meaning of the word ‘ties’ imports, we think, a concept involving something more than merely remote and abstract links to the country of proposed deportation or removal. It involves there being a continued connection to life in that country; something that ties a claimant to his or her country of origin. If this were not the case then it would appear that a person’s nationality of the country of proposed deportation could of itself lead to a failure to meet the requirements of the rule. This would render the application of the rule, given the context within which it operates, entirely meaningless.

The outcome was that the appellant succeeded both under the new immigration rules as interpreted and on a more traditional human rights basis as well.

The lack of engagement by the Secretary of State in these cases is striking. No real attempt has been made legally to justify or defend the new rules and Home Office officials are being instructed not to run any ‘in the alternative’ argument. A ‘do or die’ approach is preferred. One possibility is that the Secretary of State is saving her best arguments for the higher courts. The other possibility is that she has none. Either smacks of politics, not law.