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Human rights and the Immigration Rules


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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.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


5 Responses

  1. Hehe, the HOPos getting it in the neck for a change, instead of immigration lawyers :-)

    From Izuazu (Article 8 – new rules) [2013] in front a pretty scary panel of very senior Judges! I love the clarity of this determination and the refusal of the Judges to kowtow to the legally illiterate Secretary of State. The solicitors and counsel have done a fantastic job in providing the semtex for the Judges to blow the Secretary of State out of the water. Happy days indeed after months of horror from Theresa May!

    “We, nevertheless, take this opportunity to express our dissatisfaction at the appellant’s lack of preparedness in this case, although on what we were informed it does not appear to have been the individual responsibility of Mr Nath. This was the Secretary of State’s appeal on a profoundly important new issue for determination by this Tribunal with potential impact on many cases being heard daily across the country. Whenever an issue of this significance arises the Upper Tribunal is likely to constitute itself as a panel and deploy the most senior judges available to it at the time. It needs to give clear and comprehensive guidance to judges sitting throughout the United Kingdom as speedily as possible. Here there had been a case management hearing attended, we were informed, by a Home Office Presenting Officer where the importance of the issue would have been made plain in the listing arrangements. Whether or not the Presenting Officers’ Unit was aware that the President and a judge of the Court of Session were to sit on this appeal is not the point. The Tribunal is entitled to expect that any advocate before it will be properly briefed with the relevant documents, fully prepared to address the issues that everybody is aware arises, and is capable of addressing the issues orally when they arise. Not for the first time, we conclude that there has been a failure by UKBA of its duty of co-operation with the Tribunal to advance the over-riding objective of fast, fair and efficient adjudication.”

  2. Whoops, got to the end, should have waited before I posted, she lost! She had a bad immigration history, but there were lots of really useful points made by the Judges that will help other appellants.

  3. I’ve only just got round to reading the Appendices to Izuazu. Did anyone else have Dolores Umbridge’s voice going on inside their head when they read the letter from the SSHD at App A or is it just me? :D

    “Let us preserve what must be preserved, perfect what can be perfected, and prune practices that ought to be prohibited. Tee-hee!”

    Link: http://www.youtube.com/watch?v=QqDB27Lx6n0

  4. If history is forgotten, the same mistakes get repeated.

    So here we are on another round of new immigration rules getting ruled illegal or incompatible with ECHR by the judiciary.

    One wonders yet again who advises the Secretary of State, or whether he/she take the advice, and how the senior UKBA officials respond to proposals before they go to Parliament. I can see why many experienced lawyers say that the Home Office is not interested in the Rule of Law.

    Some of the criticisms of HO staff were quite colourful and amusing:
    “woefully underprepared senior Presenting Officer”
    “senior policy wonk at the Home Office ”
    What is a wonk?