UTIAC 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) Paksitan [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)).
Blake J, Phillips UTJ
[2013] UKUT 254 (IAC)
Bailii
England and Wales
Immigration
Updated: 14 November 2021; Ref: scu.511227
