The interplay between Article 8 and Appendix FM

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

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.

Dr Bernard Andonian
Professional development consultant solicitor at Gulbenkian Andonian solicitors

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