UTIAC Prior to the new immigration rules (HC 194) introduced on 9 July 2012, cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against was in accordance with the immigration rules; (2) second to assess whether the decision was contrary to the appellant’s Article 8 rights.
The new immigration rules set out a number of mandatory requirements relating to claims reliant on Article 8 (‘Article 8 claims’) which make clear that if such requirements are not met, the Article 8 claim under the rules must be refused. They also contain related provisions which confer discretion but it is discretion to grant leave in response to an Article 8 claim only if the new mandatory requirements are met.
Whenever the new rules have application judges are obliged to consider whether an appellant can show he meets the relevant requirements (s.86(3)(a) of the Nationality, Immigration and Asylum Act 2002). Where the new rules afford some related discretion, judges are obliged to consider whether that discretion should have been exercised differently (s. 86(3)(6)). However, what judges are doing when they are conducting this exercise is simply applying the rules: the rules are the rules: see paragraph 10 Mahad [2009] UKSC 16. The fact that these rules in part refer expressly to Article 8 or to certain Article 8 concepts is incidental. The fact that as a result of these changes the rules are longer and incorporate some of the vocabulary of Article 8 makes no difference.
Because for most purposes the immigration rules must be given legal effect (see Odelola [2009] UKHL 25), their requirements for applicants making an Article 8 claim to show ‘exceptional circumstances’ or ‘insurmountable obstacles’ are to be understood as legal requirements in the same way as any other mandatory requirements of the rules.
However, the new rules only cover Article 8 claims brought under some, not all, Parts of the Rules and only accommodate certain types of Article 8 claims.
Even if a decision to refuse an Article 8 claim under the new rules is found to be correct, judges must still consider whether the decision is in compliance with a person’s human rights under s.6 of the Human Rights Act ( see s.84(1)(c), (g) and (e) and s.86(2) and (3) of the 2002 Act) and, in automatic deportation cases, whether removal would breach a person’s Convention rights (s.33(2) UK Borders Act 2007). Thus in the context of deportation and removal cases the need for a 2 stage approach in most Article 8 cases remains imperative because the new rules do not encapsulate the guidance given in Maslov v Austria App no.1683/03 [2008] ECHR 546, which has been endorsed by the higher courts.
When considering Article 8 in the context of an appellant who fails under the new rules, it will remain the case, as before, that ‘exceptional circumstances’ is not to be regarded as a legal test and ‘insurmountable obstacles’ is to be regarded as an incorrect criterion.
However, as a result of the introduction of the new rules, consideration by judges of Article 8 outside the rules must be informed by the greater specificity which they give to the importance the Secretary of State attaches to the public interest. For example, the new rules set out thresholds of criminality by reference to terms of imprisonment so that Article 8 private life claims can only succeed if they not only have certain periods of residence but can also show their criminality has fallen below these thresholds.
Judges:
Storey, Coker UTJJ
Citations:
[2012] UKUT 393 (IAC)
Links:
Statutes:
European Convention on Human Rights 8, Immigration Rules, Nationality, Immigration and Asylum Act 2002 86(3)(a)
Jurisdiction:
England and Wales
Citing:
Cited – Julius v Lord Bishop of Oxford and Another HL 23-Mar-1880
A statute enacted that with regard to certain charges against any Clerk in Holy Orders it ‘shall be lawful’ for the Bishop of the diocese ‘on the application of any party complaining thereof’ to issue a commission for enquiry.
Held: The words . .
Lists of cited by and citing cases may be incomplete.
Immigration, Human Rights
Updated: 09 November 2022; Ref: scu.466458
