Last week, the Supreme Court handed down judgment in Patel, Alam & Anwar v SSHD [2013] UKSC 72, in which Lord Carnwath decided a number of important points affecting the way in which such Article 8 of the European Convention on Human Rights ‘fallback’ arguments are to be decided.

The first important point to note is the Court’s (strictly obiter) approval of AS Afghanistan [2009] EWCA Civ 1076. We can all now be confident that, where a one stop notice has been served, the grounds raised in response need not have anything to do with the substance of the application to the Home Office (§§34-44).

Second, the Court overruled Mirza and Sapkota, holding that the Home Office need not issue a removal decision, or a section 120 “one-stop” notice, together with the variation decision; and the failure to do either does not affect the lawfulness of the variation decision (§§25-30).

Third, the interesting aspect of Patel lies in what the Court says about how a “near miss” under the Rules is relevant to the assessment of proportionality under Article 8 ECHR. The idea at the heart of the appellants’ case was that a “sliding scale” or “inverse relationship” exists according to which the closer an applicant gets to meeting the Rules, the weaker gets the legitimate aim of maintaining effective immigration control under Article 8(2) (§§45-50). Patel holds that there is no such thing as a formalized sliding scale in Strasbourg or domestic authority (§§56).

However, Lord Carnwath also accepted that the “the balance [between the Article 8(1) interest and legitimate aim pursued] drawn by the rules may be relevant to the consideration of proportionality,” and that, “the practical or compassionate considerations which underlie the policy [i.e. the rule] are also likely to be relevant to the cases of those who fall just outside it, and to that extent may add weight to their argument [under Article 8].” (§55)

Applying this approach, Lord Carnwath noted in relation to Mrs Huang, the dependant relative in Huang [2007] UKHL 11:

“Mrs Huang’s case for favourable treatment outside the rules did not turn on how close she had come to compliance with rule 317, but on the application of the family values which underlie that rule and are at the heart also of article 8. Conversely, a near-miss under the rules cannot provide substance to a human rights case which is otherwise lacking in merit.” (§56)

As to the latter, Lord Carnwath had in mind the appellants Alam and Anwar, who had been Tier 4 students; he held that studying in the UK “does not by [itself] provide grounds of appeal under article 8, which is concerned with private life, not education as such.” (§57) Article 8 arguments in student and work based cases will need to be carefully distinguished from the facts of Anwar and Alam, whose private life was not overwhelming (entry dates of 2007 and 2010).

It is interesting that the Court makes no reference to the minimum interference principle, which is the third and critical limb of the proportionality test, as cited and approved in Huang (HL) at §19:

(iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”

In a sense, it is difficult to see how one can assess whether removal goes “no further than necessary to accomplish the objective” without assessing the extent to which the person in fact meets the rules. However, in view of Patel, there is little point in measuring a client up against the rules. It would be better to measure them up against the competing policy interests; i.e. how far do the policy reasons engaged by the rule and by the legitimate aim work in favour of the client? This appears to be the logic of both Patel and of the minimum interference principle.

For example, if a person can maintain and accommodate themselves, there will be no impact on the public policy aim of securing the economic well being of the country. Or where a student has been here for 9 years lawfully and has built up a significant private life, and loses for admissibility reasons under section 85A of the 2002 Act but satisfies the substance of the rule, the policy factors underlying the admission of students should also weigh in favour of granting leave (together with the economic arguments etc). If these arguments are tied back to the “minimum interference” limb of the proportionality test per Huang, in the context of Patel, which talks about the relevance of underlying policy interests, one ought to avoid being characterised as a “near miss” argument.