The Upper Tribunal has handed down another two cases on the statutory human rights considerations introduced by the Immigration Act 2014. The relationship between Article 8, the Immigration Rules and the statutory considerations is the itch that judges cannot help but scratch, but it is primarily an academic and political issue rather than one of real substance. It is also the subject of one of the Free Movement CPD training courses if you are interested.

There are plenty of more serious issues that affect real outcomes for refugees, migrants and their families, though, and it would be nice to see the tribunal turn its attention to some of those.

The first case, Forman (ss 117A-C considerations) [2015] UKUT 412 (IAC), is from President McCloskey and it merely reiterates previous case law. I suspect the only reason it has been reported was that it was heard in Scotland and the Upper Tribunal hierarchy would like the Court of Sessions to start paying attention, please.

The second case, Bossade (ss.117A-D-interrelationship with Rules) [2015] UKUT 415 (IAC), is more interesting, although you will be hard pressed to discover this because it is so difficult to read. The headnote is awful and even includes “viz”. Twice. And “per se”.

As I understand it, this is probably not a reference to the popular comic book but instead a deployment of a medieval annotation based on a Latin word that Wikipedia tells me is a synonym for “namely”, “that is to say” and “as follows”. Why those words or phrases could not be used in these times of increasing numbers of litigants in person I do not know.

That headnote reads:

1. For courts and tribunals, the coming into force of Part 5A of the Nationality, Immigration and Asylum Act 2002 (ss.117A-D) has not altered the need for a two-stage approach to Article 8 claims.

2. Ordinarily a court or tribunal will, as a first stage, consider an appellant’s Article 8 claim by reference to the Immigration Rules that set out substantive conditions, without any direct reference to Part 5A considerations. Such considerations have no direct application to rules of this kind. Part 5A considerations only have direct application at the second stage of the Article 8 analysis. This method of approach does not amount to according priority to the Rules over primary legislation but rather of recognising their different functions.

3. In the context of foreign criminal cases (because the provisions found in Part 13 of the Rules are a complete code encompassing both stages of the Article 8 assessment), this means that Part 5A considerations have no direct role at the first stage when a court or tribunal is deciding whether an applicant meets the substantive conditions of paragraphs 399 or 399A of the Immigration Rules. They only have direct application at the second-stage, viz. assessment under the rules that involve a proportionality assessment: viz. paragraph 398 and (in revocation cases) paragraph 390A. In cases other than those concerning deportation of foreign criminals, where the Rules are not a complete code, it may still be necessary to conduct this second stage outside the Rules: see Secretary of State for the Home Department v AJ (Angola)[2014] EWCA Civ 1636at [39]. 

4. Whilst Part 5A considerations may have indirect application to the Immigration Rules, including those setting out substantive conditions such as paragraphs 399 and 339A, this is limited to their role as statements of principles that can be used where appropriate to inform the meaning of key terms set out in such paragraphs.

5. New paragraph 399A of the Immigration Rules remains similar to the old in considering the foreign criminal deportee’s situation both in the UK and in the country of return. However, so far as concerns focus on a person’s situation in the UK, time in the UK is no longer relevant as such except in the context of lawful residence (399A(a)) and paragraph 399A(b) introduces new criteria that relate to social and cultural integration in the UK. So far as concerns focus on the situation in the country of return, paragraph 399A no longer looks at ‘ties’ per se but at the more inclusive notion of integration and obstacles thereto. By requiring focus on integration both in relation to a person’s circumstances in the UK as well as in the country of return, the new Rules achieve a much more holistic assessment of an appellant’s circumstances. Thereby they bring themselves closer to Strasbourg jurisprudence on Article 8 in expulsion cases which has always seen consideration of both dimensions as requiring a wide-ranging assessment: see e.g. Jeunesse v Netherlands(GC) App.No. 12738/10, 31 October 2014, paragraphs 106-109.

This is the first reference I think I have seen to the important case of Jeunesse, reported on Free Movement back in October 2014. The central point about a two stage process is also similar to one that has been argued here on Free Movement: basically, the statutory considerations only apply in cases which are being considered outside the Immigration Rules under a “free standing” Article 8 assessment. First, then, it is necessary to consider the position under the rules.

However, for my own part I doubt that the tribunal has it quite right here in Bossade. The Part 5A considerations are important factors Parliament says are to be taken into account that must inform a judge’s decision making. They are capable of being taken into account and used as an aide to interpretation in any human rights consideration, probably including one under the rules. They are not a separate “complete code”, even the apparently code-like foreign criminal provisions at section 117C. As argued previously, instead those provisions do tell a judge definitively what is in the public interest but do not tell judges how to balance that public interest against the rights of the individual.

It would be good to see the Tribunal go further and tackle the further implications of the Home Office purported incorporation of human rights considerations into the Immigration Rules. What impact does that have on the argument that there is a public interest in applications outside the rules being rejected? Logically, how does this apply to a human rights application inside the rules? Does this mean that notions of exceptionality and other concepts imported from human rights law but not explicitly set out in the rules should not be applied inside the rules? Surely it does, as I argued in a piece on seven years residence applications for children and parents.

The tribunal also in this determination turns its attention to the meaning of “integration” in the context of paragraph 399A(b) of the Immigration Rules:

Integration must be shown to exist in two respects: social and cultural. Neither one nor the other is sufficient. The term integration imports a qualitative test: in order to assess whether a person “is” socially and culturally integrated in the UK, one is not simply looking at how long a person has spent in the UK or even at whether that period comprises lawful residence: but the fact that an applicant has spent some or all of his time in the UK unlawfully may be of relevance in deciding whether he has integrated in these two ways. Another difference between the old and the new Rules is that whereas the previous rule required any period of imprisonment to be discounted, the new rule is silent on the matter. As a result we consider that it must remain open to the decision-maker to consider time spent in prison negatively, because it does not bespeak integrative behaviour; but the rule no longer mandates that.

The tribunal goes on to put the metaphorical boot in, rather surprisingly by drawing on EU law in order to interpret the UK domestic immigration rules purporting to implement the ECHR:

Mr Mak submitted that it is implicit in the paragraph 399A context – a rule dealing with foreign criminals – that merely being a foreign criminal cannot preclude a person from showing the necessary integration. With that we can easily agree. Mr Mak further submitted that the rule cannot have been intended to assist only a few such persons. With that we wholly disagree. The new Rules make even clearer than the pre-28 July 2014 rules that deportation of foreign criminals is always in the public interest and can only be outweighed in very limited circumstances. In general terms imposition of a custodial sentence is an indication that the person concerned has not respected the values of the host society (cf in the context of EU law on deportation of foreign criminals, Case C-400/12 Secretary of State v MG ECJI:EU:C2014:9 at [31]). Further, whilst in prison a person cannot be a useful member of society at large; during that time such a person cannot as a general rule show integration into society. Thus, although the new rule does not as such preclude time in prison from being considered as to whether social and cultural integration is shown, its terms leave very little scope for such argument.

It is refreshing to see the tribunal swimming against the tide of legal and political fashion. Most commentators these days consider it undesirable to look abroad in order to interpret domestic legislation. The tribunal here, though, draws on a completely different body of foreign law and principles and daringly transposes it to the domestic immigration rules! We can presumably look forward to such judicial boldness — bravery, even — being deployed in favour of unpopular minorities in the near future. Perhaps reference to and use of the EU Charter of Fundamental Rights will follow? Or we might see the tribunal making reference to and direct use of the UN Convention on the Rights of the Child, or the various trafficking conventions?

Or is it merely that immigration law determinations are political rather legal and that judges find their authority and reasoning where they choose?

Ultimately, these legal ruminations are fascinating but it is hard to see what the human rights error of law was by the first-tier judge. It is said to be “failure to assess objectively the issue of ties in the country to which he would be deported” but whether that amounts to an error of law is pretty doubtful. These are academic issues of interest primarily to lawyers and on reflection perhaps it would be better, as this post began by suggesting, if the tribunal instead got on with dealing with other less academic issues that actually affect outcomes.

The appellant loses, of course, by the way.