The test for an Article 8 claim to stay in the UK within the Immigration Rules is whether there are “insurmountable obstacles” to continuing family life outside the UK. But even if an applicant does pass this test, there is a further hurdle: whether removal is disproportionate. An important question here is what weight the test under the Immigration Rules has in making this decision on proportionality.

At least, that was the position until the recent decision in TZ (Pakistan) and PG (India) v Secretary of State for the Home Department [2018] EWCA Civ 1109. The Court of Appeal has now stated that, where Article 8 is engaged, satisfying the Immigration Rules also means that removal is disproportionate. An applicant who gets over the first Article 8 hurdle need not worry about the second.

Until TZ (Pakistan) was decided, the leading case was an Upper Tribunal judgment, Mostafa v Secretary of State for the Home Department [2015] UKUT 112 (IAC). In paragraph 23 of that judgment, then-President McCloskey said that fulfilling the test in the Immigration Rules was a weighty factor, though not determinative.

Plainly this will mean that the underlying merits of an application and the ability to satisfy the Immigration Rules, although not the question before the Tribunal, may be capable of being a weighty factor in an appeal based on human rights but they will not be determinative. They will only become relevant if the interference is such as to engage Article 8(1) ECHR and a finding by the Tribunal that an appellant does satisfy the requirements of the rules will not necessarily lead to a finding that the decision to refuse entry clearance is disproportionate to the proper purpose of enforcing immigration control. However it may be capable of being a strong reason for allowing the appeal that must be weighed with the others facts in the case.

TZ (Pakistan) changes things. Satisfying the test outlined in the Immigration Rules is now a determinative factor in whether removal is disproportionate, as the Court of Appeal stated at paragraph 34.

Where a person satisfies the Rules, whether or not by reference to an article 8 informed requirement, then this will be positively determinative of that person’s article 8 appeal, provided their case engages article 8(1), for the very reason that it would then be disproportionate for that person to be removed.

This reasoning appears to have two results. The first result is that where an applicant satisfies the Article 8 test within the Rules, that will be determinative of whether removal is disproportionate.

The second result is that where an applicant satisfies the Immigration Rules in general, “whether or not by reference to an article 8 informed requirement”, that will be determinative of their Article 8 appeal as removal would be disproportionate.

Interesting finding at §34: "where a person satisfies the Rules…then this will be positively determinative of that person's article 8 appeal, provided their case engages article 8(1), for the very reason that it would then be disproportionate for that person to be removed." https://t.co/lYWOZYOkkK

— Lawrence Youssefian (@LYoussefian) May 17, 2018

A useful case for applicants and their lawyers

This case therefore removes the wiggle room within which the Home Office might argue that despite the applicant satisfying the Immigration Rules, removal would still not be disproportionate. This appears to be useful for applicants and their lawyers.

Indeed, this is the flip side of the Home Office argument that the Immigration Rules and policies define what is and what is not proportionate in all but exceptional cases.

There is a further wrinkle when we get to what actually happens once an applicant has shown they satisfy the Article 8 test. Cases which satisfy human rights grounds outside the Immigration Rules will be granted leave on the ten-year route to settlement. But certain categories of case, such as spouses, are ordinarily granted leave on the five-year route to settlement under the Immigration Rules.

There is a risk that spouse cases which satisfy the Rules but are argued under Article 8 may be granted leave on the ten-year route because their claim is a human rights one, rather than on the five-year route consistent with their status as spouses under the Immigration Rules. Such applicants, who meet the five-year route as spouses under the Immigration Rules, would feel justifiably aggrieved if they were granted leave under the ten-year route just because their case additionally satisfies human rights grounds. Let’s hope that such applicants will in future be granted leave under the five-year route.