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Will the real Article 8 please stand up!


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jess-the-catIn the reported case of Green (Article 8 – new rules) [2013] UKUT 254 (IAC), the Upper Tribunal again reaffirmed that despite the Immigration Rules pertaining to incorporate Article 8, tribunals should continue to consider the substantive Article 8 claim even if the Immigration Rules cannot be met.

The official head note of Green states:

​(1) In Nagre v SSHD [2013] EWHC 720 (Admin) the Administrative Court approved the guidance of the Upper Tribunal in Izuazu [2013] UKUT 45 (IAC) in turn endorsing the two stage approach recommended by the Upper Tribunal in MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC). Sales J added the proviso that it would not always be necessary to move on to the second stage and consider Article 8 proportionality apart from the provisions of the Immigration Rules. Where the rules and the learning on Article 8 were in harmony the answer given by the rules might render further inquiry unnecessary, unless there were exceptional circumstances. In that case the difference between the rules and the Strasbourg principles was marginal.

​(2) It follows from that case, and the decisions of the UT in Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) that judges hearing appeals against decisions made after 9 July 2012 should consider how the Immigration Rules would apply, and make any relevant findings in that context before considering the wider application of Article 8 and the jurisprudence of the Upper Tribunal, and the higher courts, either to decide whether there are exceptional factors not contemplated by the Rules or that the decision is an unlawful one and disproportionate to the legitimate aim. Pending any further guidance from the Court of Appeal, judges of both chambers should apply the principles set out in Izuazu.

​(3) Paragraph 398 of the Immigration Rules makes no reference to persons who commit crimes as juveniles. By contrast the decision of the Grand Chamber in Maslov v Austria [2008] ECHR 546 is clear that “when assessing the nature and seriousness of the offences committed by an applicant, it has to be taken into account whether he or she committed them as a juvenile or as an adult”.

​(4) As the Upper Tribunal has explained in Izuazu and Ogundimu, where the Immigration Rules do not reflect the established principles under human rights law it is the law as laid down in primary legislation that must be followed.

​(5) Adding to what the Tribunal said in Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 46 (IAC), where the course of conduct relied on in the deportation decision includes conduct that has not resulted in a criminal charge or conviction, the Tribunal will need to take that conduct into account despite the absence of sentencing remarks (see Bah (EO (Turkey) – liability to deport) [2012] UKUT 196 (IAC)).

The Panel in the First Tier Tribunal had allowed the Appellant’s appeal on “real” Article 8 grounds and had found that his deportation would be disproportionate. The SSHD was successful in obtaining permission to appeal.

The Upper Tribunal found that the Panel erred in not making some express findings in relation to paragraph 398 of the Immigration Rules but found that this error was not material. The Upper Tribunal upheld the decision of the Panel concluding that there was no material error of law in the determination.

The Upper Tribunal endorsed the approach of the Court in Izuazu [2013] UKUT 45 (IAC). Essentially, that there needs to be a two stage process to the determination of an appeal: an assessment of the Immigration Rules themselves and also an assessment of wider Article 8 rights. Although in Nagre, there is reference to an assessment of Article 8 only when “exceptional circumstances” exist, the Upper Tribunal found that “the facts and issues in Nagre were far removed from the issues that arise in this appeal and further detailed consideration of that decision is not necessary or appropriate.”

In addition, the Upper Tribunal made a number of important observations, which will be relevant to consider in the context of deportation appeals:

  • Immigration Rule 398 makes no reference or allowance for individuals who commit crimes as juveniles. The importance of the case of Maslov was reiterated;

  • to add to the case of Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 46 (IAC), where the facts of a case include conduct not resulting in criminal charges or a conviction, the Panel need to take this into account, despite the absence of sentencing remarks.

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Sanaz Saifolahi

Sanaz Saifolahi is a barrister at Goldsmith Chambers. She is well regarded for her thorough case preparation, effective advocacy and personable nature. Sanaz is also an assessor for the Law Society ‘Immigration Law Advanced’ Accreditation Scheme.