In Dube (ss.117A-117D) [2015] UKUT 90 (IAC) the Upper Tribunal expresses its opinions on the new Part 5A of the Nationality, Immigration and Asylum Act 2002, introduced by the Immigration Act 2014. The Court of Appeal has already had its say in the case of YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292 and you can read my earlier posts on the subject here and here.

The tribunal’s take is uncontroversial commonsense:

(1) Key features of ss.117A-117D of the Nationality, Immigration and Asylum Act 2002 include the following:

(a) judges are required statutorily to take into account a number of enumerated considerations. Sections 117A-117D are not, therefore, an a la carte menu of considerations that it is at the discretion of the judge to apply or not apply.  Judges are duty-bound to “have regard” to the specified considerations.

(b) these provisions are only expressed as being binding on a “court or tribunal”. It may be that the Secretary of State will consider it in the interests of good administration and consistency of decision-making on Article 8 claims at all levels to have express regard to ss.117A-117D considerations herself, but she is not directly bound to do so.

(c) whilst expressed in mandatory terms, the considerations specified are not expressed as being exhaustive: note use of the phrase “in particular” in s.117A(2): “In considering the public interest question, the court or tribunal must (in particular) have regard— “.

(d) section 117B enumerates considerations that are applicable “in all cases”, which must include foreign criminal cases. Thus when s.117C (which deals with foreign criminals) states that it sets out “additional” considerations that must mean considerations in addition to those set out in s.117B.

(e) sections 117A-117D do not represent any kind of radical departure from or “override” of previous case law on Article 8 so far as concerns the need for a structured approach. In particular, they do not disturb the need for judges to ask themselves the five questions set out in Razgar[2004] UKHL 27.  Sections 117A-117D are essentially a further elaboration of Razgar’s question 5 which is essentially about proportionality and justifiability.

(2) It is not an error of law to fail to refer to ss.117A-117D considerations if the judge has applied the test he or she was supposed to apply according to its terms; what matters is substance, not form.

The tribunal goes on to suggest that earlier case law such as the House of Lords case of EB (Kosovo) [2008] UKHL 41 cannot stand alone, unaffected by the statutory considerations. This has to be correct, but the issue of delay by the Home Office remain just as relevant to the proportionality balancing exercise now as always; it has never been a determinative factor nor the only relevant consideration, nor is it today. The importance of the issue of delay was recently underlined by the Grand Chamber decision in Jeunesse v Netherlands (App no. 12738/10), which I wrote up earlier here. Dube is the first time we’ve seen that case cited in a UK case, I think, and the quote relied on by the tribunal is a very small part of the overall picture in that judgment.

Lastly, the case illustrates that different panels of the tribunal clearly take different views about how far the Home Office in particular needs to articulate its grounds of appeal and how far the grant of permission defines the argument on appeal. In this case the panel seems happy enough to dig around to find an error of law. Other panels, led by the President, have suggested a stricter approach.