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The importance of the immigration rules in human rights appeals


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Following the abolition of the “not in accordance with the immigration rules” ground of appeal by the Immigration Act 2014, several cases have considered the relevance of the immigration rules in human rights appeals. The Upper Tribunal has neatly encapsulated the current position in a recent case, Caguitla (Paragraphs 197 and 199) [2023] UKUT 116.

The immigration rules are relevant in two ways:

  1. Where it can be demonstrated that the requirements of the rules are met, there is no public interest in the person’s removal.
  2. Where the spirit, albeit not the letter, of the rules can be met an appellant may be able to demonstrate that removal would be disproportionate.

This post considers each of these in further detail, before going on to consider when it may be possible to demonstrate that the spirit of the rules has been met.

Meeting the requirements of the rules

Where the requirements of the immigration rules can be met:

“…the balance of public interest against the individual circumstance of the appellant clearly falls in favour of the appellant, because the immigration rules demonstrate that there is no public interest in excluding a person who meets their requirements.”

This is now fairly well established. Although not cited by the Upper Tribunal, it is consistent with the decisions in TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109 (see paragraph 34 and the free movement write up here) and OA and Others (human rights; ‘new matter’; s.120) Nigeria [2019] UKUT 65 (IAC) (see paragraph 27).

What may be of more interests to practitioners is the second reason the rules may be relevant.

Meeting the spirit of the rules

As explained by the Upper Tribunal:

“…an appellant who does not meet the requirements of the rules may be able to show, by relying on the terms of the rules, that it would be disproportionate to exclude an appellant who falls in a very similar category to one who would meet the requirements of the rules. That will not be so if the problem is that the appellant misses (even narrowly misses) a quantitive [sic] or numerical requirement of the rules; but an appellant may be able to show that the public interest demonstrated by the rules ought to be read in exactly the same way in relation to the appellant’s own circumstances, despite the latter not precisely meeting the terms of the rules.”

Again, this is consistent with existing case law. In MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10, where the Supreme Court held:

“Not everything in the Rules need be treated as high policy or peculiarly within the province of the Secretary of State, nor as necessarily entitled to the same weight. The tribunal is entitled to see a difference in principle between the underlying public interest considerations, as set by the Secretary of State with the approval of Parliament, and the working out of that policy through the detailed machinery of the Rules and its application to individual cases”.

In short, it is the public interest rationale underpinning the rules which is important, not the precise terms of the rules themselves. Caguitla helpfully translates this general principle into practice, in the context of human rights appeals. It is likely to be useful when seeking to persuade a First-tier Tribunal judge that public interest does not require the removal of an individual, notwithstanding their inability to meet the precise terms of the rules.

When will the spirit of the rules be met?

In Caguitla, it was argued that the immigration rules applicable to the child of a domestic worker with Indefinite Leave to Remain should be read as if they also applied to the child of a domestic worker who has naturalised as a British citizen. It was argued that:

“…if the child of a person with mere indefinite leave to remain is entitled to admission, the public interest cannot demand the exclusion of the child of a person who is a British citizen.”

The Upper Tribunal rejected that argument. There was no reason to suppose that the exclusion of British citizens was accidental as there is a separate rule dealing with this:

“There are means by which the children of British citizens may obtain leave, or further leave, to be in the United Kingdom; but there is no good reason for supposing that those rules should be identical to those applying to the family members of those who are not British citizens.”

The appeal was therefore dismissed. Although this particular argument was unsuccessful, other arguments based on the same general principle could be successful. 

The Upper Tribunal makes it clear that they are not talking about “near miss” cases here. In 2013, the Supreme Court held that falling just short of the requirements of the immigration rules is not enough, on its own, to render refusal disproportionate (see Patel & Ors v Secretary of State for the Home Department [2013] UKSC 72 at paragraph 56 and the free movement write up here).

The key words there are “on its own”. Earning £18,500 rather than the required £18,600 is unlikely to be enough to win an otherwise weak article 8 appeal following refusal of a spouse visa. However, when combined with other factors (such as difficulties continuing family life outside the UK) it may tip the balance.  

The argument is likely to be stronger where the substantive requirements of the rules are met (such as the £18,600 minimum income requirement), but the procedural or evidential requirements are not met. Where the rule which cannot be met is concerned with matters of practicality rather than principle, it is likely to be easier to demonstrate that the public interest does not require the person’s removal.

There are also likely to be cases which simply aren’t covered by the immigration rules. It is impossible for the rules to cover every eventuality. Where it can be established that an appellant’s personal circumstances are very similar to those catered for in the immigration rules, it may be possible to demonstrate that it would be disproportionate to remove them from the UK.

It is worth remembering that the public interest rationale is not always the same. There is, of course, a general public interests in maintaining effective immigration control. However, there is often more to it than that. There may be a competing, or alternative, public interest at play. The minimum income threshold protects the economic wellbeing of the country by ensuring that migrants are not reliant on public funds (per MM (Lebanon) at paragraph 15). The domestic violence rules protect victims of domestic violence and ensure that they do not feel compelled to remain in an abusive relationship in order to qualify for ILR (per SWP v Secretary of State for the Home Department [2023] EWCA Civ 439 at paragraph 33). Recognising and highlighting these alternative public interests, when relevant, can help demonstrate that removal from the UK is not a proportionate means of achieving the legitimate aim which underpins the rules. 

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Iain Halliday

Iain Halliday is an Advocate (the Scottish equivalent of a Barrister) at Themis Advocates. He specialises in public law, including immigration and asylum, retained EU law, human rights, and judicial review.