Immigration Law Update: The Secretary of State for the Home Department v Dube (ss.117A-117D) [2015] UKUT 00090 (IAC)

 

The Secretary of State for the Home Department v Dube (ss.117A-117D) [2015] UKUT 00090 (IAC) 
 

The UT considered the application of s.117 of the Nationality and Asylum Act 2002 (as inserted by section 19 of the Immigration Act 2014). The Tribunal emphasized the obligation on the Tribunal to consider the matters set out in these provisions in determining an Article 8 claim and that though the SSHD herself was not so obliged that she might wish to in the interests of good and consistent administration and decision making. The Tribunal held that the consideration of the matters set out in s.117 did not however remove the duty to undertake the five-question approach adumbrated in Razgar; and did not either present as a comprehensive list of factors relevant to an Article 8 inquiry vis proportionality. In its own words the Tribunal summarised its conclusions in the following way:

“(1) Key features of ss.117A-117D of the NIA 2002 include the following:

(a) judges are required statutorily to take into account a number of enumerated considerations. Sections 117A-117D are not, therefore, an a la carte menu of considerations that it is at the discretion of the judge to apply or not apply. Judges are duty-bound to "have regard" to the specified considerations.

(b) these provisions are only expressed as being binding on a "court or tribunal". It may be that the Secretary of State will consider it in the interests of good administration and consistency of decision-making on Article 8 claims at all levels to have express regard to ss.117A-117D considerations herself, but she is not directly bound to do so.

(c) whilst expressed in mandatory terms, the considerations specified are not expressed as being exhaustive: note use of the phrase "in particular" in s.117A(2): " In considering the public interest question, the court or tribunal must (in particular) have regard— ".

(d) section 117B enumerates considerations that are applicable "in all cases", which must include foreign criminal cases. Thus when s.117C (which deals with foreign criminals) states that it sets out "additional" considerations that must mean considerations in addition to those set out in s.117B.

(e) sections 117A-117D do not represent any kind of radical departure from or "override" of previous case law on Article 8 so far as concerns the need for a structured approach. In particular, they do not disturb the need for judges to ask themselves the five questions set out in Razgar [2004] UKHL 27. Sections 117A-117D are essentially a further elaboration of Razgar's question 5 which is essentially about proportionality and justifiability.

(2) It is not an error of law to fail to refer to ss.117A-117D considerations if the judge has applied the test he or she was supposed to apply according to its terms; what matters is substance, not form."


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