(i) Failure on the part of the Secretary of State to identify in her decision any legitimate aim under Article 8(2) of the ECHR does not prevent a court or tribunal from seeking to do so on the basis of the materials before it.
(ii) ‘Maintenance of effective immigration control’ whilst not as such a legitimate aim under Article 8(2) of the ECHR can normally be assumed to be either an aspect of ‘prevention of disorder or crime’ or an aspect of ‘economic well-being of the country’ or both.
(iii) ‘[P]revention of disorder or crime’ is normally a legitimate aim both in expulsion cases where there has been criminal conduct on the part of the claimant and in expulsion cases where there have only been breaches of immigration law.
(iv) MF (Nigeria) [2013] EWCA Civ 1192 held that the new immigration rules regarding deportation of a foreign criminal are a complete code. This was because of the express requirement in them at paragraph 398 to have regard to exceptional circumstances and other factors.
(v) It follows from this that any other rule which has a similar provision will also constitute a complete code;
(vi) Where an area of the rules does not have such an express mechanism, the approach in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) ([29]-[31] in particular) and Gulshan (Article 8 – new Rules – correct approach) [2013] UKUT 640 (IAC) should be followed: i.e. after applying the requirements of the rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them.
Storey, Pitt UTJJ
[2014] UKUT 85 (IAC)
Bailii
European Convention on Human Rights 8
England and Wales
Immigration, Human Rights
Updated: 01 December 2021; Ref: scu.522262