Immigration– The interplay between Article 8 of the Geneva Convention on Human rights 1950 incorporated in the Human Rights Act 1998 and Appendix FM of the new Immigration Rules effective as from 9 July 2012: –
Deportation / Removal—when a deportee can argue successfully that he/ she should not be removed from the UK under the UK immigration legislation and case law.
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As well as relaxing the rules on the financial threshold that must be crossed by family members seeking settlement in the United Kingdom, the Home Office in HC290 has also acted on the declaration made by the Supreme Court in MM (Lebanon) (2017) UK SC 10 that the Immigration Rules and Immigration Directorate Instructions were unlawful in not giving direct affect to the duty under section 55 Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children.
Therefore, a new paragraph Gen .3 .3 in Appendix FM stipulates that in cases where there might be exceptional circumstances rendering refusal of entry clearance or of leave to enter or remain a breach of article 8, whether because the applicant cannot meet the normal financial requirements or indeed cannot meet the requirements of any other immigration rule, “the decision -maker must take into account as a primary consideration, the best interests of any relevant child.”
The same inclusion to the “section 55 duty” now appears at EX1 (a), where an applicant has a genuine and subsisting parental relationship with a child and “it would not be reasonable to expect the child to leave the UK.” To this has been tacked on “taking into account their best interests as a primary consideration.”
The Home Office has actually gone further and has purported to bring “the test of proportionality under article 8 into the Rules”. Of course, they said the same thing when the Rules were changing in 2012 with the introduction of appendix FM in paragraph 276 ADE. But it was soon accepted that even if an application did not succeed under the new rules, the test of proportionality under Article 8 could be applied at the ‘second stage’ of an appeal on human rights grounds. Now the explanatory memorandum to HC 290 claims that the changes made “mean that the immigration rules now provide a complete framework for the Secretary of State’s consideration on article 8 grounds of applications under appendix FM by partner, child, parent or adult dependent relative.”
The reference to a “complete framework “reminds one that the immigration rules on deportation, Paras 396- 400 HC 395, were once characterised by the Court of Appeal (in MF Nigeria), as a complete code”, a characterisation disapproved by the Supreme Court in Hesham Ali (2016) UKSC 60. ‘The two-stage’ approach survived that misdescription, and no doubt there will be still a second stage in human rights appeals which do not succeed under the new version of appendix FM.
All the events, the references at section GEN of Appendix FM to entry clearance or leave being granted “outside the rules on article 8 grounds” have all been deleted. What we have instead is GEN 3,2 which stipulates that “where an application… does not otherwise meet the requirements of this Appendix or part 9 of the Rules, the decision- maker must consider… on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain a breach of Article 8 … because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.”
This test was previously in the immigration directorate instructions published in August 2015 and was approved by the Supreme Court in Agyarko (2017) UKSC 11. As the press summary of that case puts it: – “the instruction state that exceptional does not mean unusual or unique, but mean circumstances in which refusal would result in unjustifiably harsh consequences for the individual, such that refusal of the application would not be proportionate. This is an application of a test of proportionality, consistent with the references to exceptional circumstances in European case law, and cannot be regarded as incompatible with article 8.”
The information on which a finding of unjustifiably harsh consequences may be based must come from the applicant. There is no duty on the Home Office to make enquiries beyond that. It was once mooted that the tribunal should make its own enquiries into the best interests of children where this was an issue, but the idea was scorched as wholly impractical. GEN 3.3 relieves the Home Office of any such duty in relation to the best interests of the child when it states that it must be evident “from the information provided by the applicant “that the child would be affected by the refusal of the application.
The addition of ‘exceptional circumstances’ into appendix FM at GEN 3.2 is reminiscent of the stipulation at paragraph 398 that it will only be in exceptional circumstances (now replaced by “very compelling circumstances”), that deportation can be avoided because of factors other than those provided for in the rules. It will of course be possible on appeal to look at information which was not provided to the decision maker by the applicant to determine whether there are exceptional circumstances. So, the’ second stage’ survives, come what may!
Those fortunate enough to be granted entry or leave to remain as a partner or parent under GEN 3.1 (see Section 6), or GEN. 3.2 will go on the 10-year route to settlement, with no recourse to public funds unless, as laid down by GEN.1.1.11A, there is satisfactory evidence that the applicant is destitute or that “there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income.” If they can subsequently meet the normal requirements of Appendix FM, they can apply to enter the five-year route.
Deportation/Removal- the public interest consideration
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In Hesham Ali (2016) UKSC 60, Lord Reid confirmed that the” two-stage” approach in deportation appeals is correct, and that the Court of Appeal was right in MF (Nigeria) (2013) EWCA Civ 1192, to suggest that” very compelling reasons” would be needed for allowing an appeal under article 8 when the foreign criminal did not meet the provisions of paragraphs 399 – 399 A of the immigration rules. The court had explained that exceptional circumstances which was the wording of the rules at the time, meant no more than that great weight should be given to the public interest in deporting foreign criminals who did not come within paragraph 399 – 399A. It was not an exceptionality test but denoted a departure from the general rule. His Lordship also approved of laws LJ’s view in SS Nigeria 2013 EW CA C IV 550 that at the second stage of a deportation appeal in a human rights claim would have to be a very strong claim indeed.
Lord Wilson agreed with all that, and was also with Lord Reid in pointing out that an insignificant but unfortunate error made by the Court of Appeal in MF Nigeria when they described paragraph 396 – 400 HC 395 as a complete code in which both stages of a deportation case could be determined. This had led to a misunderstanding in some later cases that the rules and the rules alone governed appellant’s decision-making. Rather the test at the second stage was whether there were factors of compelling nature which would outweigh the public interest in the deportation of a foreign offender who could not avail themselves of the human rights consideration set out in the rules.
Lord Wilson made another correction this time to himself by resiling from what he had said in 0H Serbia 2008 EW CA C IV 694 about one of the factors to be weighed on the public interest side of the proportionality balance being an expression of public revulsion at serious crimes. This was too emotive a term. But to other factors which he mentioned at the time, namely the deterrent effect of deportation orders and the building of public confidence in the system of dealing with foreign criminals, should, insisted his Lordship, still be given weight on the public interest of the balance.
This prompts the question whether a tribunal when weighing up the public interest side of the balance in a deportation appeal commits an error of law if it does not explicitly mention deterrence and public confidence as factors going into that side of the balance. OH, Serbia decided at the time, well before the introduction of paragraph 396 – 401 immigration rules did not purport to reflect article 8 and was well before the statutory guidance for the judges at the second stage of the two-stage test given in part five A of the Nationality, Immigration and Asylum Act 2002. There is no mention in section 117C of deterrence or building public confidence in the treatment of foreign citizens who have committed serious crimes. Arguably a tribunal which makes clear in other ways that it is according great weight to the public interest will not be falling into error if it fails to mention deterrence and public confidence.
Indeed, the remark of Burnett LJ as he then was, he is now law chief justice, in EA 2017 EW CA C IV 10 there may be apt here “decisions of tribunal should not become formalistic and really benefit from copious citation authority. Arguments that reduced to the proposition that the first-tier Tribunal has failed to mention dicta in a series of cases in the Court of Appeal or elsewhere or elsewhere will rarely prosper”.
on the other hand, Burnett LJ reverts to Lord Wilson’s expression when criticising the first-tier Tribunal’s assessment of the public interest in the case before him “the first tribunal refers only to the public interest in the prevention of disorder and crime without any reference to the great weight to be attached to removal in the public interest. That is a dimension which stretches far beyond narrow questions of deterrence and future risk. It is the moral dimension referred to by laws LJ in SS Nigeria. It captures public revulsion at serious offending by those who are, in one sense guests in this country.”
Precariousness- immigration interpretation
The disapproval of criminality by people who are guests in this country leads to a query about who exactly the people who are whose status in this country is precarious. When discussing the Strasbourg jurisprudence in Hisham Ali, Lord Reid draws a distinction from the tyre of line of cases between settled and non-settled migrants. For the latter fact counting against them will be whether their family life was created at the time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the out bed precarious.
Lord Wilson also refers to the Strasbourg jurisprudence (Rodrigues Da silva, v Netherlands and Jeunesse v the Netherlands, which makes it “likely to be only in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8” when his immigration status renders his continued residence precarious.
Precariousness in the Strasbourg sense pertains only to non-settled migrants and seems particularly directed at those with irregular immigration status. It features in our domestic law in two important ways. First among immigration rules relating to deportation, paragraph 399 9 b) (1) benefits a potential deportee if there is relationship with a British or settled partner was formed at the time when his immigration status was not precarious. Secondly and not just in deportation cases, section 117B of the NIAA Act 2002 which sets out the public interest considerations applicable in all article 8 cases requires sub- para 5 (that “little weight should be given to a private life established by person at the time when that person’s immigration status is precarious.”
Precarious immigration status is distinct from unlawful presence in both the rules and part five the o the 2002 Act, and the Upper Tribunal have given it a very wide ambit. And immigration status that was lawful but precarious suggests to someone that it meant being on temporary admission or on statutory extended leave under section 3C of the Immigration Act 1971 after one ordinary leave would otherwise have expired. In AM Malawi 2015 UK UT 260 IAC, a vice presidential panel of the Upper Tribunal give the term a much wider interpretation: – “those who at any given date held precarious immigration status must have held at that date an otherwise lawful grant of leave to enter or to remain. A person’s immigration status is precarious if their continued presence in the UK will be dependent upon their obtaining a further grant of leave. In some circumstances it may also be that even a person with indefinite leave to remain or a person who has obtained citizenship, enjoys a status that is precarious, either because that status is revocable by the SSHD as a result of their deception, or because of the criminal conduct. In such circumstances the person will be well aware that he has imperilled his status and cannot viably claim thereafter that his status is other than precarious.’
This very wide interpretation has since been adopted in for example Foreman 2015) UK UTUT 412 IAC in which a migrant who had lived lawfully in Scotland for seven years, first as a student and then under Tier 1 post study were route , was held by a presidential panel of the Upper Tribunal to have passed the entirety of his private life in the United Kingdom during a period when his immigration status was precarious. It could not therefore be accorded more than slight weight.
On the other hand, McCuskey P seems to have taken a more generous approach subsequently. Thus, in Treebhawon & others NIAA 2002 part five – compelling circumstances test, 2017 UK UKUT 13 IAC the head note state says this: – “the Parliamentary intention underlying part five A of the NIAA 2002 is to give proper affect to article 8 ECHR. Thus, the private life development or established during periods of unlawful or precarious residence might conceivably qualify to be accorded more than little weight and section 117 (b) (4) and (5) are to be construed and applied accordingly.
The strictness of the earlier Upper Tribunal approach has also been tempered somewhat by Lord Reid at paragraph 49 – 53 of his judgement in Agyarko 2017 UKSC 11 emphasises a passage in the IDI’s instructing Home Office caseworkers that it is people who put down roots in the UK in the full knowledge that their stay here is unlawful or precarious who should be given less weight in article 8 balance. His Lordship envisaged circumstances in which people might be under a reasonable misapprehension as to their ability to maintain a family life in the UK and in which a less stringent approach might therefore be appropriate.”
Lord Reid also reminds us of the Chikwmaba point, i.e. that there might be no public interest in removing a person even one residing in the UK unlawfully if he would be sure to get entry clearance on an application made from abroad. Perhaps in the chikwmaba point is not so strong nowadays as prior unlawful residence may well provide a reason for refusing an application for entry clearance as a spouse, if there are other aggravating circumstances – see paragraph 320 (11) HC 395. His Lordship reminds us to of the EB Kosovo point i.e. that the “weight to be given to precarious family life is liable to increase if there is a protracted delay in the enforcement of immigration control.”
The Home Office instructions which are cited with approval by Lord Reid as consistent with the case law of the European Court of Human Rights, actually says “family life which involves applicant putting down roots in the UK, in the full knowledge that their stay here is unlawful or precarious, should be given less weight, when balanced against the factors weighing in favour of removal, than family life formed by person lawfully present in the UK.
this clearly differentiates lawful presence which would include limited leave, from a precarious state which is not unlawful but is presumably a lesser status than ordinary leave. That is very different from the tribunal’s case law, which views limited leave and potentially indefinite leave as a precarious status. Lord Reid himself expands lawful or precarious into whether the applicant is in the UK unlawfully, or is entitled to remain in the UK only temporarily. It is not clear however precisely what the latter expression means. Does it include somebody with five years leave as a Tier 2 general migrant or can it apply for settlement at the end of that period or is it rather for people like visitors who cannot normally get an extension of their current leave?
A clue to that has been provided by sales LJ Rhuppiah heard 2016 EW CA C IV 803. Harking back to Jeunesse v Netherlands his Lordship observes that “a person would know from the outset that there would be precariousness immigration to persistence of family life if he was given limited leave to enter or remain in the host state where it was clear that the he would have to leave at the end of a set period of time in the not far distant future.” In that case the applicant was given leave to enter as a student in 1997, followed by successive grant of leave to remain until 2009, but Lord Justice sales rejected an argument that she was on, a route to settlement. It was said for each individual grant of leave to enter or remain; the period of grant was specifically limited to the comparatively short and clearly delimited period required for the completion of the course of study. On the occasion of her application in each case, she may have had a hope that her leave might be extended when it came to an end if she could find another study course, but she had no guarantee that she would be able to do so and no guarantee that the same immigration rules would be in place when she made her further application. The hope if she had any of possibly eventually being in a position to apply for ILR was still more remote and tenuous.”
The student route does not lead in itself to settlement and is normally limited to a maximum of eight years. So, it is a precarious immigration status for the purpose of section 117 (5), (b), but roots that do lead to settlement such as a five-year route for spouses and Tier 2 general migrants are surely not precarious in the same sense. True something could happen which would prevent an individual from completing five years on the route. The marriage might break down, or a sponsoring employer might lose its Home Office licence. But that is different from knowing at the outset that one will have to leave the UK at the end of a set period of time in the not distant future. Those on a route to settlement provided by the immigration rules ought arguably to have more weight accorded to private or family life ties established whilst on such a route than those who are not.
The issue of reasonableness under the Immigration rules
Paragraph EX. 1 (a) of appendix FM can come to the rescue of a partner or parent who does not meet the normal requirements of the immigration rules, if he has a genuine and subsisting parental relationship with a child who is a British or has lived in the UK for seven years, and it would not be reasonable to expect the child to leave the UK. if a human rights appeal in a non-deportation case gets the to the second stage, section 117B (6) NIAA 2002 tells judges that the public interest does not require the applicant’s removal if those same two conditions are satisfied.
In Treebhawon & ors 2015 UK UT 674 IAC McCloskey P held that the language of the statute was unequivocal and that someone satisfying those conditions would avoid removal. The other subsection of section 117B would not have to be considered. Another presidential panel carried out a more elaborate and comprehensive exercise applying 17 7 B (6). In PD and others article 8 conjoined family claims 2016 UK UT 108 IAC but with the same result.
In MA Pakistan 2006 and EW CA C IV 705, however the SSHD argued that all potentially relevant public interest factors including the rest of section 117B should be taken into account when determining whether it would not be reasonable to expect the child to leave. The conduct and immigration history of parents would be relevant factors, so that the stronger the public interest in removing the parent the more reason would be to expect the child to leave.
Lord Justice Elias could see no justification in reading the concept the reasonableness in this way, rather than focusing purely on what was reasonably for the child. But he felt bound by the authority of MM Uganda and others 2006 EW CA C IV 617. The court was there looking at what was meant by the effect of his parent’s deportation being unduly harsh on a child, under section 117 C (5) of the NIAA 2002. Although that subsection was a freestanding provision in the same way as section 117 B6, it was held that the wider public interest considerations must be taken into account when applying the unduly harsh criterion. It seemed to Judge that this must be equally so with the reasonableness criterion. The same time the fact that the child had been here for seven years had to be given significant weight when carrying out proportionality balancing exercise. This indeed was the guidance given to the immigration directorate instructions which states once the seven-year residency requirement is satisfied there needs to be strong reasons for refusing leave. But his Lordship did not accept a submission that if it is in the best interest of the child for him to stay, that necessarily resolves the reasonableness question. There is nothing intrinsically illogical in the notion that while the child’s best interests are for him to stay, it is not unreasonable to expect him to go.
It remains to be seen whether the recent addition of taking account of the best interests of the child to the consideration at EX 1 a of whether it would be reasonable to expect the child to leave the UK will make any difference in assessments of reasonableness.
Undue harshness under the immigration rules
Since 28th of July 2014 but immigration rules and the 2002 Act have provided for a foreign criminal to avoid deportation unless he has been sentenced to 4 years or more in prison, if it would be unduly harsh for the partner or child or children either to live in the country to which he is to be deported or to remain in the UK without him, see paragraph 399 and Section 117C ( 5). Naturally there has been some uncertainty as to how the expression is to be interpreted. Initially Upper Tribunal took the view in MAB USA 2015 UK UTD 434 IAC that the impact of deportation upon the innocent family member should be the focus to the exclusion of the gravity of the foreign criminal’s offence. In MM Uganda and another 2016 EW CA C IV 617 laws LJ took the opposite view. The meaning he explained is coloured by its context and the context here invites emphasis on two factors: – – one public interest in the removal of a foreign criminal and second, the need for a proportionate assessment of any interference with article 8 rights. Accordingly continued his Lordship, “The more pressing the public interest in an offender’s removal the harder it will be to show the effect on his child or partner will be unduly harsh”. All the circumstances must be taken into account not merely the impact on the child or partner and those circumstances certainly include the criminal criminal’s immigration and history. If anything, this approach has now hardened. It was expanded in IT Jamaica 2016 EW CA C IV 932, an appeal against refusal to revoke the deportation order. Lady Justice Arden concluded that the undue harshness standard section 117C of the 2002 Act means that the deportee must demonstrate that there are very compelling reasons for revoking the deportation order before it has run its course. She explained that the harshness brought about by the continuation of the deportation order must be undue i.e. it must be sufficient to outweigh that strong public interest. Inevitably therefore there will have to be very compelling reasons.
Such an approach seems tantamount to lifting undue harshness out of exemption two at 117 (5) which is for foreign criminals who have not been sentenced to 4 years or more in prison and aligning it with very compelling circumstances over and above those described in exceptions one and two at section 117 (6), which is for those sentenced to at least four years.
Court of Justice of the European Communities – Zambrano
The ECJ’s landmark judgement in case C – 34/09 has featured regularly in cases where the parents of British children are facing removal or deportation. The Home Office IDI of August 15 headed “family life as a partner or parent and parent life 10-year route to and private life ten-year routes” gives guidance to caseworkers – in cases not involving serious criminality on when it would be unreasonable to expect the British child to leave the UK in terms EX 1 a of HC 395. The Guidance is said to reflect Zambrano when it states, “where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on basis and it would be unreasonable to expect a British Citizen child to leave the UK with a parent or primary carer.” This may seem a rather generous way of putting it but the guidance has also explained that the effect of the parent’s removal must not be to force the British child to leave the UK. The idea is consistent with current case law. Indeed, in SF and others guidance post 2014 Act Albania 2017 UK UUT 120 IAC, a Vice presidential panel applied this guidance when deciding that it would be unreasonable to expect a British child to leave the UK with his mother and siblings.
But earlier case law caused a serious misunderstanding. In Sanade – British children – Zambrano – Dereci 2012 UK UT 48 IAC, presidential panel had stated “case C34/09 Zambrano now makes it clear that where the child or indeed the remaining spouse is a British citizen and therefore a citizen of the European Union as a matter of EU law it is not possible to require the family as a unit to relocate outside the European Union or for the SSHD to submit that it would be reasonable for them to do so”.
This was actually a concession made in the course of proceedings by the SSHD who accepted that it will not logically be possible to argue that it would be reasonable to expect a British child to remove to a country outside the EU in order for the family unit to remain intact. This notion was taken up in many subsequent appeals before the first-tier Tribunal. Example in IT Jamaica supra, the first-tier Tribunal held following Sanade, that it was not possible to require the appellant’s wife and child both British citizens to relocate with him outside the European Union and the only way to avoid an article 8 breach was for the appellant to be readmitted to the UK.
In VM Jamaica 2017 EW CA C IV 255, it was actually the upper tribunal which applied Sanade in allowing an appeal against deportation. But when the case reached the Court of Appeal, sales LJ deprecated the concession made in Sanade, and welcomed the fact that counsel for the SSHD was now for the first time explicitly resiling from the concession. That was in April 2017 – more than five years after Senade was promulgated.
Sales LJ went on to explain the case C – 356/11 Dereci rather than Zambrano was applicable to the facts of the instant case in which the children could remain in the UK with a British mother if she chose to stay here rather than follow her husband to Jamaica :- “ rather than a legal impossibility of remaining in the UK, the family would face a difficult practical choice whether to separate with the mother and children remaining in the UK in which case there would be no significant infringement of their EU citizenship rights, or to leave and go to Jamaica as a family unit. This is the situation addressed in Dereci and in domestic authority.
Private life under the immigration rules
Private life – integration – here one is looking at the private life of a deportee at the second stage of an appeal, and courts and tribunals are told that the public interest does not require deportation if exception 1 applies. Three, criteria are listed in section 117 ( 4) of the NIAA 2002, and all three must be satisfied; one of them is that in respect of the foreign criminal there would be very significant obstacles to that person’s integration into the country to which he/she is proposed to be deported ; this is actually the same test as the one at paragraph 399A of the Immigration Rules, the first stage, and it is virtually the same test as paragraph 276 ADE i( 1) ( 6) for people facing removal as overstayers or illegal entrants, except that they are being required to leave the UK rather than being deported.
In in SSHD v Kamara 2016 EW CA C iv 813, Lord Justice Sales gave a broad definition of integration: – “it is not confined to the mere ability to find a job or to sustain life while living in the other country… the idea of integration calls for a broad evaluation judgement to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society is carried out and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life”.
it is laid down in section 117 (5) that the “little weight “should be given to private life established at a time of precarious immigration status, but that is not the same as no weight. As acknowledged in trebhawon – compelling circumstances test- IAA July 2002 part 5 A– compelling circumstances test, Mauritius 2007 UK UT 13 and Kaur – children’s best interest – public interest interface, 2017 UK UT 14, there is a spectrum in the quality of weight to be ascribed. A similar point is made in the case of Rhuppiah 2016 EWCA C IV 823. In that case it was stated “for a case falling within section 117 (b) 5) little weight should be given to private life established in the circumstances specified but the approach may be overridden where the private life in question has a special and compelling character “.
Dr Bernard Andonian
Professional development consultant solicitor at Gulbenkian Andonian solicitors
