Article 8 Guidance For July 2012 Immigration Rules

By Author: Shwan Sharif
Total Articles: 2
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Under Article 8 ECHR, member states must refrain from interfering in individuals’ private and family lives, except where necessary in a democratic society. Prior to the introduction of HC 395, the courts applied a two-stage test in Article 8 cases (R (Razgar) [2004] UKHL 27). First, had the decision being appealed been made in accordance with the immigration rules? Second, did the decision violate the appellant’s Article 8 rights?

The courts were required to take into account judgements from the European Court of Human Rights (ECtHR) such as Boultif v Switzerland and Maslov v Austria, but not to follow Strasbourg jurisprudence (so it is not necessary to show there are ‘insurmountable obstacles’ to family life to succeed under Article 8 as a matter of UK law (Huang [2007] UKHL 11)).

The HC 395 rules purport to provide a code for assessing Article 8 claims, such that fewer challenges to removal orders will be able to succeed on Article 8 grounds. However, both primary decision-makers and judges are bound by s. 6 of the Human Rights Act (which transposes the ECHR into UK law). ...
... The new rules explicitly maintain this obligation, which is anyway binding in the primary legislation.

The Tribunal held that the new rules specify what requirements have to be met if the SSHD is to be satisfied that an Article 8 claim can succeed under the immigration rules (see s. 86(3)(a) and (b)).

As the immigration rules have the force of law, the requirements for individuals appealing removal from the UK to demonstrate ‘insurmountable obstacles’ to continuing family life, or ‘exceptional circumstances’ are now legal tests, to be assessed by the courts as such, in determining if decisions are lawful. However, and crucially, the Tribunal held that stage two of the test in Article 8 cases remained intact. The courts were still under an obligation to assess the ‘real’ Article 8 claim. So, if the appellant failed to make out a successful appeal under the immigration rules, based on their description of Article 8, s/he might still succeed under Article 8.

The Tribunal held in particular that, because the new rules do not incorporate Strasbourg jurisprudence as interpreted by the UK’s higher courts, failing to take into account the Maslov criteria for example, the two-stage test remained to be carried out by courts assessing Article 8 claims.

However, the definition of the ‘public interest’ for removing someone defined as a ‘foreign criminal’ being set out in detail in the new rules, this was less a matter for judicial interpretation than it had been previously, when the public interest would be defined in the individual submissions of the SSHD in each case. The Tribunal found that further case law on this point was likely, as public interest is not a fixity (GS [2005] UKAIT 000121).

In the instant case, the appellant, a Nigerian citizen, entered the UK illegally in 1998. He claimed asylum in September 2006. In 2009 he and his partner obtained a certificate to marry. In 2009 he was also convicted for handling stolen goods (an offence committed in 2005).

The appellant’s wife and his stepdaughter were British citizens and so it would be unreasonable to ask them to relocate to Nigeria. However, the family ties the appellant relied on were based on a family life he developed in the knowledge that his immigration status was precarious. He had been convicted of offences carrying a sentence of over 12 months. Even though he had served his sentence, for the purposes of the UK Borders Act 2007, he was still a ‘foreign criminal’.

However, under s. 55 of the Borders, Citizenship and Immigration Act 2009, the Tribunal was obliged to treat the best interests of the child as a primary consideration. The appellant’s stepdaughter had formed a relationship with her father (even though technically a stepfather, she considered him to be her de facto father), such that the impact of removing her father from the UK could not outweigh the public interest in removing him. The appeal was upheld.

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