The appeal of Orhan Mendirez [2018] CSIH 65 is an interesting judgment from the Inner House in which both the Upper Tribunal and First-tier Tribunal come in for criticism. Both failed to approach their decision-making task, in an appeal focused on Article 8 of the European Convention on Human Rights, with the “anxious scrutiny required”.

The decision, I think, illustrates two characteristics of our immigration law at present. Firstly, that the law is unnecessarily tortuous as regards the proper assessment of family life rights under Article 8. Secondly, that this complexity detracts from the tribunal’s primary function, which is to resolve matters of fact.

Background: the right to family life under Theresa May

We are now seven years on from Theresa May’s famous ‘cat’ speech. The then Home Secretary claimed that a migrant won a human rights appeal against removal from the UK because he had a pet cat. Mrs May said “I am not making this up”. She was.

The speech augured fundamental changes to our immigration law. These were directed, it was said, towards a consolidation within the Immigration Rules of the approach to be taken by decision-makers in the assessment of a person’s Article 8 rights.

Of course behind this codification was a fundamental hostility to Article 8, which Mrs May made clear:

This is why I remain of the view that the Human Rights Act needs to go. The Government’s Commission is looking at a British Bill of Rights [remember that?]. And I can today announce that we will change the immigration rules to ensure that the misinterpretation of Article 8 of the ECHR – the right to a family life – no longer prevents the deportation of people who shouldn’t be here.

So in the summer of 2012 we saw sweeping alterations to the Immigration Rules (statement of changes HC194), introducing for example the much maligned ‘minimum income’ rule for spouse visas. We also got a decision-making framework for Article 8 cases. The explanatory note rung the promises made by Mrs May eight months earlier:

The Immigration Rules will fully reflect the factors which can weigh for or against an Article 8 claim. The rules will set proportionate requirements that reflect the Government’s and Parliament’s view of how individuals’ Article 8 rights should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis. Outside exceptional cases, it will be proportionate under Article 8 for an applicant who fails to meet the requirements of the rules to be removed from the UK.

Fast forward to 2017 and the system is still not perfect. Statement of changes HC290 brought further alterations to the rules to reflect the challenge to the minimum income rule in the Supreme Court, with the explanatory note stating:

These changes mean that the Immigration Rules now provide a complete framework for the Secretary of State’s consideration on Article 8 grounds of applications under Appendix FM by a partner, child, parent or adult dependent relative.

In fact I would argue that the changes since 2012 have unnecessarily complicated the assessment undertaken by Home Office decision-makers. Part of the problem is that the changes were made in bad faith. Theresa May was clear in 2011: she didn’t like the Human Rights Act, and since 2012 our immigration law has, under the cover of codification, sought to restrict those rights in general and Article 8 rights in particular. The changes sought to achieve a limitation of rights enshrined in the Human Rights Act by a means other than repeal of that Act.

Immigration Rules on Article 8 a complicated and incomplete mess

Reading Mendirez one is left with the undeniable sense of how unnecessary and useless all this complexity on Article 8 is.

The appellant is married to a British citizen and applied under the Immigration Rules for a spouse visa. He did not meet the financial requirements of the rules. In this circumstance, Appendix FM requires that a decision-maker consider paragraph EX1.

EX1 is a part of the Rules designed to accommodate a person’s Article 8 rights. The relevant part in this case was that “the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK”. Insurmountable obstacles is further defined as “very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”

Of course “insurmountable” does not actually mean what is said above. For example there are not insurmountable obstacles to me visiting the moon next year. Certainly this is very unlikely, but the obstacles to it happening are not insurmountable.

Anyway, all of this consideration occurs “within” the Immigration Rules. In the case of Mendirez, the First-tier Tribunal judge erred in failing to consider whether paragraph EX1 could be satisfied.

Complicating matters, to any reasonable observer, is the fact that a decision-maker must still proceed to consider Article 8 “outside the rules”. All cases still fall to be considered, ultimately, in line with the principles originally enacted in Razgar  14 years ago. No matter how many phrases of grim finality you incorporate (“insurmountable obstacles”, “very serious hardship”, “very significant difficulties”) the bottom line is that in all cases, as long as the rights under Article 8 continue to exist, you are ultimately considering the proportionality of a decision in the individual circumstances of those affected by an immigration decision.

In other words, despite seven years of striving towards a complete code, it is still necessary to embark on what is effectively a consideration of whether a decision would be disproportionate in terms of human rights law. Colin wrote at the time of the judgment of Secretary of State for the Home Department v SS (Congo) [2015] EWCA Civ 387, cited in this case, lamenting the resulting complexity thus:

We are left with a sort of scale of “exceptional circumstances”, “very compelling circumstances” and merely “compelling circumstances” depending on the type of application. What this means in practice or how one differentiates one from the other in practice is a mystery the judges do not deign to address.

Adding further to this mess is the application of Part 5A of the Nationality, Immigration and Asylum Act 2002, namely public interest considerations applicable in all cases. The tribunal judge further erred in this respect:

he does not state how he took them into account, nor how he considered them to be relevant.

The changes to the law brought about the needless specification of factors which should have been considered in any event, and which now place the mechanism of decision-making to the forefront, rather than the substantive decision itself.

This brings us to my second point, that this complexity simply confuses decision-makers and detracts from the functions of the tribunal.

Tribunal exists to find the truth, not get bogged down in legal contortions

The First-tier Tribunal is of course there to decide the law, and I am far from saying that the assessment of proportionality in an Article 8 claim was ever straightforward. But increasingly tribunal decisions see judges tortuously setting out the framework of decision-making they believe they are subject to, with the understandable risk of getting this wrong and creating an attendant burden on appellate courts to resolve errors of law.

A tribunal’s most useful function is to resolve matters of fact. Even with a balanced, reasonable and diligent primary decision-maker (a sort of anti-Home Office), there will inevitably be circumstances when it is not possible to resolve a factual dispute. Documents can only go so far. Evidence needs to be tested, witnesses examined, and the essential truth of a case brought to light. This is something the tribunal is uniquely placed to do, but increasingly I think it is getting bogged down.

In Mendirez this was the substantial part of the criticism directed at the tribunal. Put simply, the judge failed to make factual findings:

The relationship between the appellant and the lady who married him in 2014 has subsisted since 2009. The FTT judge makes no findings in fact about that relationship, nor about any private life in Scotland. There are no findings in fact about the effect that moving back to Turkey (with or without his wife) might have on the appellant’s private life in Scotland or his relationship with his wife. There are no findings in fact relating to how easy or difficult it would be for the appellant (with or without his wife) to find accommodation and employment in Turkey nor how easy it would be for them to be absorbed into Turkish society, standing the appellant’s status as a nonpractising Muslim and his wife’s status as a non-Muslim who has objections to wearing the hijab. 

The Inner House did not actually express a view on whether Mr Mendirez was entitled to succeed either within the rules or outwith (yes this is a word in Scotland) the rules. The error of law was that the judge failed to perform his arguably primary duty of establishing the factual matrix upon which to base a judgment. Mr Mendirez will have to appear before the tribunal again and present his appeal afresh. One can only imagine the cost to the public purse created by a deficient first instance judgement.

Free Movement recently pointed out that the Home Office now loses most of its appeals. Looking at the published tribunal statistics on human rights appeals we can see that last year 56% of appeals were allowed, out of a total figure of 22,815. Placed against that statistic it would be very interesting to discover just how much public money has been spent on the endless litigation in higher courts resulting from the attempt to bring Article 8 within the rules (quite apart from the misery caused to thousands of migrants).

Indeed what is perhaps most striking, given that the Home Office is still losing most appeals on Article 8, is that the government’s attack on Article 8 has been as ineffective as it was disingenuous. Such is Theresa May’s legacy from her time as Home Secretary. It is fortunate that she is no longer in a position of power.