In a very welcome determination that comes a mere two years after the abolition of full rights of appeal for visitors but in the middle of the scything of full rights of appeal for everyone else, President McCloskey has turned his attention to the question of the relevance of compliance with the Immigration Rules to a human rights appeal. The answer is that where a person meets the terms of the Immigration Rules, their appeal will normally fall to be allowed on human rights grounds, assuming that human rights are engaged in some way in the first place.

This is an argument that will be familiar to regular readers of this blog.

The legal backdrop to the case is the removal of full rights of appeal for family visitors in 2013. Similar provisions have been enacted for all other immigration appeals under the Immigration Act 2014, although the commencement of those provisions is very complex. Already, though, all Points Based System migrants can only appeal on asylum or human rights grounds. It is, then, a fortuitous time for the tribunal to consider whether it has any function in the New World Order of immigration appeals.

The case is Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC). A husband had applied to visit his wife in the UK, his wife being a British citizen. His application was refused under the visitor rules by an Entry Clearance Officer. An appeal was lodged and the appeal succeeded. The First-tier judge held that the Immigration Rules were in truth satisfied, the husband did have the required intention to return and went on to allow the appeal. The problem was that the appeal was allowed under the Immigration Rules and not on human rights grounds. Given that the only permissible ground of appeal was on human rights grounds, this understandably led the Entry Clearance Officer to appeal and for permission to be granted.

President McCloskey finds that the tribunal is not bound by the facts found by the ECO, as had been argued in Home Office grounds of appeal, applies the five-step Razgar approach to the determination of human rights issues and finds that human rights were engaged on the facts of the case:

We regard it as settled law that in an Article 8 balancing exercise the rights of all those closely affected, not only those of the claimant, have to be considered. It is our view that the decision in Shamin Box [2002] UKIAT 02212 is to be followed and that the obligation imposed by Article 8 is to promote the family life of those affected by the decision. Undoubtedly the paradigm Article 8 entry clearance case concerns applicants seeking to join close family members for the purposes of settlement. However it cannot be excluded that where one party to a marriage is entitled to be in the United Kingdom a qualified obligation to facilitate spousal unification for the limited purpose of a short visit and sojourn may arise and does arise here. Mrs El-Sheikh wanted to return to her country of nationality (the United Kingdom) for a time and her husband wanted to be with her, not with a view to settlement but so that he could share her life and relationships in the United Kingdom. The refusal decision had a material impact on their right to enjoy family life. He did not want to settle but to visit her, and subject to permissible qualifications, he should be entitled to do that. Whilst it would almost certainly be proportionate to refuse him entry clearance if he did not comply with the rules his, and his wife’s, desire to be together in her home area, albeit for purposes of a visit, are very human and understandable.

There will perhaps be circumstances where human rights are not engaged, despite the low threshold. In such circumstances, the human rights ground of appeal will not avail an appellant. On this issue of when human rights might be engaged, the President goes off piste (obiter to legal readers) and gives general guidance beyond the facts of the particular case:

It would therefore be extremely foolish to attempt to be prescriptive, given the intensely factual and contextual sensitivity of every case. Thus we refrain from suggesting that, in this type of case, any particular kind of relationship would always attract the protection of Article 8(1) or that other kinds of relationship would never come within its scope. We are, however, prepared to say that it will only be in very unusual circumstances that a person other than a close relative will be able to show that the refusal of entry clearance comes within the scope of Article 8(1). In practical terms this is likely to be limited to cases where the relationship is that of husband and wife or other close life partners or a parent and minor child and even then it will not necessarily be extended to cases where, for example, the proposed visit is based on a whim or will not add significantly to the time that the people involved spend together.

There is an argument that the different context of visits requires a different approach to the engagement of family and private life to settlement cases, but that is not something the tribunal considers here. President McCloskey also attaches two additional riders to appeals being allowed on a human rights basis where the rules are satisfied:

The first relates to their candour. For example, if they had contributed to the application being refused by presenting inaccurate information or by omitting something material or committing some comparable misdemeanour. We can accept that it might be proportionate to refuse someone entry clearance whose application suffered from deficiencies such as these because good administration requires applicants to engage with the system and, further, we consider that there are duties of candour and co-operation on all applicants. There are no such failings here. The second set of considerations relates to the impact of refusal on the relationships that have to be promoted. Refusal of entry clearance will not always interfere disproportionately with such a relationship.

It is difficult to see the legal justification for these last two additional qualifications. The Immigration Rules include a number of general grounds for refusal already and the Home Office is continually insisting that the rules represent a complete human rights assessment for all cases: live by the sword, die by the sword. If the rules are satisfied, it is hard to see how refusal could be said to be in accordance with the law, necessary in a democratic society or proportionate.

Of course, the tribunal heard no legal argument from the unrepresented appellants, which is a shame in a case of such huge importance for so many other people, and it seems likely that none of this will be subject to an appeal. The tribunal’s tendency (preference?) to make major decisions in the absence of input from appellant lawyers continues under the current President.

Lastly, the official headnote:

In the case of appeals brought against refusal of entry clearance under Article 8 ECHR, the claimant’s ability to satisfy the Immigration Rules is not the question to be determined by the Tribunal, but is capable of being a weighty, though not determinative, factor when deciding whether such refusal is proportionate to the legitimate aim of enforcing immigration control.

The immigration tribunal has often declined jurisdiction and contributed to its own redundancy in the past, so the outcome here was not necessarily a foregone conclusion. The whole JM (Liberia) saga springs to mind. Just the other day, I heard a fairly senior judge suggesting that he could or would not direct the Home Office to serve some documents and that the correct remedy was to judicially review the Home Office. This despite new disclosure powers under the new procedure rules and, frankly, flying in the face of any common sense at all.

Immigration judges ought to be breathing a sigh of relief that they will still have a job to do.