The latest from the Upper Tribunal on the statutory presumptions on human rights cases introduced by the Immigration Act 2014 is the case of Chege (section 117D : Article 8 : approach : Kenya) [2015] UKUT 165 (IAC).

The determination seems very deeply flawed indeed because that it is based on the premise that Article 8 and the statutory presumptions are one and the same, which is obviously wrong as a matter of law. It cannot possibly be right that an Article 8 appeal can only succeed where the circumstances are over and above those set out in the statutory presumptions, given that the statutory presumptions are so narrow in scope and exclude so many relevant considerations.

The determination is also arguably wrong on which set of Immigration Rules apply. It is hard to see how in an appeal against a decision taken under one set of rules, a new set of rules can be relevant to the question of whether the decision was taken in accordance with the immigration rules. Under a new-style Immigration Act 2014 appeal on human rights grounds only, however, it probably is the case that any newly introduced rules are relevant to proportionality.

The official headnote:

The correct approach, where an appeal on human rights grounds has been brought in seeking to resist deportation, is to consider:

i. is the appellant a foreign criminal as defined by s117D (2) (a), (b) or (c);

ii. if so, does he fall within paragraph 399 or 399A of the Immigration Rules;

iii. if not are there very compelling circumstances over and beyond those falling within 399 and 399A relied upon, such identification to be informed by the seriousness of the criminality and taking into account the factors set out in s117B.

Compelling as an adjective has the meaning of having a powerful and irresistible effect; convincing.

The purpose of paragraph 398 is to recognize circumstances that are sufficiently compelling to outweigh the public interest in deportation but do not fall within paragraphs 399 and 399A.

The task of the judge is to assess the competing interests and to determine whether an interference with a person’s right to respect for private and family life is justified under Article 8(2) or whether the public interest arguments should prevail notwithstanding the engagement of Article 8.

It follows from this that if an appeal does not succeed on human rights grounds, paragraph 397 provides the respondent with a residual discretion to grant leave to remain in exceptional circumstances where an appellant cannot succeed by invoking rights protected by Article 8 of the ECHR.

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