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Shahzad (Art 8: legitimate aim) Pakistan [2014] UKUT 85 (IAC)


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Like a bad itch that it can’t help but scratch, the tribunal returns again to the subject of Article 8 and ‘the proper approach’. Regretfully the distasteful, injudicious and simply impolite phrase “a run of the mill case” is again deployed, albeit this time in the context of a student rather than a pensioner and his wife. The Home Office appeal succeeds against an allowed First-tier Tribunal determination. Headnote as follows:

(i) Failure on the part of the Secretary of State to identify in her decision any legitimate aim under Article 8(2) of the ECHR does not prevent a court or tribunal from seeking to do so on the basis of the materials before it.

(ii) “Maintenance of effective immigration control” whilst not as such a legitimate aim under Article 8(2) of the ECHR can normally be assumed to be either an aspect of “prevention of disorder or crime” or an aspect of “economic well-being of the country” or both.

(iii) “[P]revention of disorder or crime” is normally a legitimate aim both in expulsion cases where there has been criminal conduct on the part of the claimant and in expulsion cases where there have only been breaches of immigration law.

(iv) MF (Nigeria[2013] EWCA Civ 1192 held that the new immigration rules regarding deportation of a foreign criminal are a complete code. This was because of the express requirement in them at paragraph 398 to have regard to exceptional circumstances and other factors.

(v) It follows from this that any other rule which has a similar provision will also constitute a complete code;

(vi) Where an area of the rules does not have such an express mechanism, the approach in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) ([29]-[31] in particular) and Gulshan (Article 8 – new Rules – correct approach[2013] UKUT 640 (IAC) should be followed: i.e. after applying the requirements of the rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them.

As a colleague said

FFS! Why can’t they just leave it alone!

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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.


3 Responses

  1. It strikes that not much has changed in reality. The substance is still the same – only the form has changed. Like the dunes of a desert, the landscape changes but we’re still dealing with sand.

    Where there is a complete code by virtue of “exceptional circumstances and other factors” (being a very open-textured phrase), the only way to gauge or assess “exceptional circumstances and other factors” is by reference to the jurisprudence on Article 8 – i.e. domestic case-law and Strasbourg jurisprudence. That would seem unavoidable by virtue of section 6 of the HRA 1998 remaining on the statute books.

    In time, I suspect “exceptional circumstances” (its scope, and the relevancies that it encompasses) will develop its own strand of case-law. To that end, what was once called “Article 8” is now called “exceptional circumstances” but, in substance, we’re dealing with the same thing, the same evidence, the same factual matrix and the like.

    The only difference is that the electorate will be now pleased to know that our government has stood by its pledge to eliminate the ‘evil’ Article 8. Give it 5,6,7 or 8 years down the line, the media will start reporting on the evils of “exceptional circumstances” and how somebody is allowed to remain in the UK because of them. The whole process will start again.

    “Exceptional circumstances” will be ousted and a new phrase ushered. In that sense, it’s a good job that our beloved English language is particularly rich so as to create all these phrasal tests.

  2. To be fair the problem in Shahzad was a clear mistake in legal analysis by the First Tier Tribunal Judge in analysing “economic wellbeing of the country” by adding up the individual economic contributions of the appellant and considering them alone. The UT then used that to go to town on “legitimate aim”.

    The position following Gulshan (itself following Nagre) is that the judge should not conduct an Article 8 analysis where there is no arguable case on Article 8. Since it is inconceivable that the appellant will submit there is no arguable case, the judge will have to decide whether the case is arguable or not…In effect this substitutes a 3-stage test for the two-stage test. 1) Rules 2) Is there an Arguable Article 8 case 3) (If yes to 2): Article 8…

    Since as representatives we are already arguing that we can win stage 3, the argument for stage 2 is automatic (though perhaps deserving of a paragraph in grounds for the benefit of more procedurally-minded judges)

    (This logic undermines the actual decision in Gulshan though. Since the first tier judge concluded that the answer to stage 3 was yes, it follows that, had he conducted the stage 2 analysis, he must have answered it yes as well. Hence, there was either no error of law (stage 2 being implicit in stage 3) or the error was not material)