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In mid-February, the question of Home Office guidance on Article 8 of the European Convention on Human Rights (ECHR) made headlines. Over the weekend of 16 February, Home Secretary Theresa May launched a scathing attack on judges and their application of Article 8 of the ECHR, accusing them of making decisions which would allow muggers and rapists to remain in the country when the Government had sought to deport them.
The row has arisen from the Upper Tribunal's decision that new rules on the application of Article 8 did not always apply. The new Immigration Rules (HC194) came into force in the summer of 2012. They provided a new approach to Article 8 claims based on the right to respect for family and private life of asylum applicants and purported to give a new and exhaustive definition of the scope and meaning of Article 8 rights. Commentators have described the Rules as an attempt to codify Article 8 in domestic law. The clear intention of the new Rules is to restrict the scope of those situations in which Article 8 can be invoked to prevent the removal of a foreign national from the UK. The Explanatory Statement accompanying the Rules stated that:
In particular, the new Immigration Rules reflect the qualified nature of Article 8, setting requirements which correctly balance the individual's right to respect for private and family life with the public interest in safeguarding the economic well-being of the UK by controlling immigration and protecting the public from foreign criminals.
Since 2007 it had been accepted that the caseworker making the decision as to whether or not to remove an individual was responsible for making an assessment of whether removal would breach the rights protected by Article 8. This had been well-accepted since the decision of the House of Lords in Huang v Secretary of State for the Home Department  UKHL 11, which found that the question was one of ascertaining whether or not removal would be a justifiable interference with Article 8. The immigration authority was to consider these issues as a primary decision-maker, and not as a reviewing body. There was no test of exceptional circumstances.
That human rights have an important role to play in immigration cases is recognised in legislation: the Nationality, Immigration and Asylum Act 2002 allows for an appeal against an immigration decision on the grounds that it is unlawful under section 6 of the Human Rights Act, which requires public authorities to act in accordance with the European Convention. The Borders Act 2007 also gives an exemption to the rules of automatic deportation where this would breach the individual's Convention rights.
The new immigration rules, however, have been read as an attempt to relegate Convention rights to a secondary consideration, with precedence being given to the Rules as an expression of the scope and meaning of Article 8. Indeed this seems to be an attempt to bring about the approach argued for by the Home Secretary in Huang: that if an individual's claim fails on the basis of the Rules, then only in exceptional cases will it be disproportionate to remove them from the UK.
The Rules have now run into two serious judicial obstacles. In MF (Article 8 - new rules) Nigeria  UKUT 00393 (IAC), an appeal against a deportation order imposed on a foreign criminal, the Upper Tribunal found that the new Rules only applied to certain Article 8 claims brought under certain Parts of the Rules. Furthermore, even where the new Rules applied and the decision reached was correct under those Rules, the Tribunal could still consider whether that decision was compatible with Article 8. Thus the two-stage approach which had seemed so settled was still to be followed in most cases: firstly, an assessment was to be made of whether the decision was accordance with the immigration rules, and secondly the decision itself was to be examined for compatibility with section 6 of the HRA. There was no legal test of exceptional circumstances. However, the court should consider Article 8 issues in light of the specific guidance found in the Rules; for example, the focus on length of imprisonment as an indicator of criminality. The cornerstone of the reasoning in this case was that immigration rules were matters of executive policy and as such could not override legislation.
The more recent case of Izuazu (Article 8 - New Rules) Nigeria  UKUT 45 (IAC) considered an appeal by the Home Secretary against the decision of an immigration judge that it was unreasonable to expect the applicant's husband to return to Nigeria with her in order to pursue their family life. The Home Secretary challenged the decision on the basis that the judge did apply the Immigration Rules (HC 194) and that he applied a test of reasonableness, rather than exceptionality. The Upper Tribunal dismissed the appeal on the basis that the decision was correct under the Rules and was in accordance with Article 8. It found that although the new Rules applied and must be taken into account, they could not disapply the duties of the courts under the Human Rights Act. However, the Tribunal noted that the considerations set out in the Rules did not adequately reflect those to be taken into account when considering Article 8 independently, and that when applying the Rules consideration would have to be made of the extent to which they adequately reflected existing case law on Article 8. The Tribunal stressed that the Rules did not have the same value as legislation, having not undergone the same level of scrutiny as primary legislation. Thus the court's obligation under section 6 of the HRA took precedence, confirming the two-stage approach in MF. The Tribunal also noted that there was no test of exceptional circumstances within Article 8.
The Upper Tribunal's approach is perhaps best encapsulated in its description of the Rules as a statement of policy as to how an individual's position will be resolved when they have no other [Article 8] claim, and that it is in this case that the Rules should be given weight to. The Rules are also relevant as part of the proportionality exercise required where Article 8 rights are at stake, that is to say when the court has moved on from the straightforward application of the Rules to its own consideration of whether removal would infringe Article 8. It is notable that the Upper Tribunal felt that it would be difficult to give weight to all the elements identified in the Rules in undertaking its own Article 8 assessment; for example, the Rules failed to give sufficient precedence to the best interests of a child when considering the proportionality of removing a parent or family member.
Whilst the Upper Tribunal doubted the legislative credentials of the Rules (an argument which was accepted in the House of Lords in Huang), the Home Secretary has accused judges of ignoring the wishes of Parliament and picking holes in parliamentary process simply because they disagree with the outcome. She has declared her intention to bring forward primary legislation clarifying that deportation will be the norm in all cases where there are no exceptional circumstances. This will no doubt require the conflict between such a rigid approach and the flexibility inherent in individual assessments of Article 8 to be debated, if not resolved, in Parliament.