Immigration Law Update: Article 8 ECHR: The Secretary of State for the Home Department v SS (Congo) & Ors [2015] EWCA Civ 387

Link to the full judgment.

By Shuyeb Muquit

This case is essential reading for those involved in advising on Article 8 claims outside the Immigration Rules. It is a case that re-enforces the ratio in Nagre and is the most comprehensive consideration to date of the interrelationship between a failure to come with the terms of the new Immigration Rules and an Article 8 inquiry thereafter arising. In so doing, the Court crystallises the weight to be attached as a matter of law to varying matters arising in the course of such an inquiry.

In summary the Court of Appeal determined that the more the Immigration Rules are considered to be the result of a conscientious effort on the part of the SSHD to strike a fair balance between competing public and private interests and so compliant with HR convention obligations (and it is accepted that immigration rules are a means by which the SSHD exercises her democratic entitlement/prerogative to effect public interests, which public interests the SSHD is also best placed to determine) then such IR’s should be attributed significance by courts conducting Article 8 proportionality inquiries; but “the degree of weight to be attached to the expression of public policy in the substantive part of the Rules in the particular context in question (which will not always be the same: hence the guidance we seek to give in this judgment), as well as the other factors relevant to the Article 8 balancing exercise in the particular case (which, again, may well vary from context to context and from case to case)” - see §§12-17/48.

The new Immigration Rules that came into force on 9 July 2012 are to be regarded as such. The practical result of this is that where an individual fails to come within the terms of such new Immigration Rules, they face varying hurdles in order to establish a successful Article 8 claim outside of them; with the nature of the hurdle dependent upon the extent to which the Immigration Rule applicable but not satisfied is an expression of the result of the SSHD seeking to strike a fair balance between public and private interests.

Thus, in the case of those who have established Article 8 rights in the context of “precarious presence” in the UK (where no children are involved), the hurdle is the requirement that they then have to establish “exceptional circumstances”; the hurdle for those who are foreign criminals who do not satisfy the terms of the rules is that they establish circumstances that show “very compelling reasons” that the decision to deport them pursuant to the application of the rules would lead to “unjustifiably harsh consequences”; whilst the test for those that do not satisfy other terms of the rules is that they have to show “compelling reasons not sufficiently covered by the Rules” for allowing their case under Article 8 “at large” (expressly said not to be as “demanding” as the other hurdles but nevertheless “fairly demanding”). Such approaches apply in relation to all aspects of the Immigration Rules, including those setting out requirements as to specified evidence (§§50-53)- “Good reason would need to be shown why a particular applicant was entitled to more preferential treatment with respect to evidence than other applicants would expect to receive under the Rules. Moreover, in relation to the proper administration of immigration controls, weight should also be given to the Secretary of State's assessment of the evidential requirements needed to ensure prompt and fair application of the substantive Rules.”

The requirement, in the context of some of the current Immigration Rules in some circumstances (as distinct from generally) to establish ‘exceptionality’ to succeed in an Article 8 claim is not inconsistent with the learning derived from Huang: when generally denouncing an “exceptionality test”, Huang was doing so in the context of Immigration Rules that were not regarded to be the result of a conscientious effort on the part of the SSHD to strike a fair balance between competing public and private interests and so compliant with HR convention obligations (that is to say there was a very wide gap between the requirements of the rules and the rights constituting Article 8 and a public private balance was never struck); and even then Huang considered that it would only be a small minority of cases that could claim success under Article 8 having failed to satisfy the terms of the Immigration Rules.

Moreover the varying hurdles referred to by the court reflected the SSHD’s entitlement (as opposed to appellants in any case) to a margin of appreciation/a discretionary area of judgment vis what is in the public interest and how best to achieve such interests set against private interests it is obliged to take account of in the context of treaty obligations; and is also consistent with the learning from cases of the ECtHR- see §§28-33; 39-42; 48.

The Court specifically also:

- (§§34-38/67) Determined that a state is not required to adopt “as accommodating an approach” in the context of applications for Entry Clearance as compared to when dealing with applications for leave to remain, further noting “at a time before section EX.1 of the new Rules was promulgated, the House of Lords in Huang contemplated that both in the context of applications for LTR and in the context of applications for LTE, it might well be the case, depending on the circumstances, that the Secretary of State could lawfully refuse an application, without violation of Article 8, even though the family life relied upon "cannot reasonably be expected to be enjoyed elsewhere": see para. [20], quoted above. This is another way of saying that this feature of a case does not, without more, create a right for a family member to enter or remain in the United Kingdom. In that paragraph, Lord Bingham also explained that, even on the Immigration Rules in the form they had prior to their amendment in July 2012, his expectation was that the number of claimants entitled to succeed under Article 8 in claiming LTE or LTR outside the Rules "would be a very small minority";

- (§§43-48) considered the significance of the whether particular Immigration Rules present a “complete code” (ultimately that the distinction Rules which and which are not a “complete code” amounts to a debate that is “sterile”, being immaterial given that in all cases under the Rules where Article 8 is relied upon there is a two stage test);

- (§§54-58) emphasized the non-existence of the so-called “near miss principle” and the “fact that an applicant may be able to say that their case is a 'near miss' in relation to satisfying the requirements of the Rules will by no means show that compelling circumstances exist requiring the grant of LTE outside the Rules. A good deal more than this would need to be shown to make out such a case” but that “it cannot be said that the fact that a case involves a 'near miss' in relation to the requirements set out in the Rules is wholly irrelevant to the balancing exercise required under Article 8. If an applicant can show that there are individual interests at stake covered by Article 8 which give rise to a strong claim that compelling circumstances may exist to justify the grant of LTE outside the Rules, the fact that their case is also a 'near miss' case may be a relevant consideration which tips the balance under Article 8 in their favour. In such a case, the applicant will be able to say that the detrimental impact on the public interest in issue if LTE is granted in their favour will be somewhat less than in a case where the gap between the applicant's position and the requirements of the Rules is great, and the risk that they may end up having recourse to public funds and resources is therefore greater” and further judges “The Secretary of State remains entitled to enforce the Rules in the usual way, to say that the Rules have not been satisfied and that the applicant should apply again when the circumstances have indeed changed. This reflects a fair balance between the interests of the individual and the public interest. The Secretary of State is not required to take a speculative risk as to whether the requirements in the Rules will in fact be satisfied in the future when deciding what to do. Generally, it is fair that the applicant should wait until the circumstances have changed and the requirements in the Rules are satisfied and then apply, rather than attempting to jump the queue by asking for preferential treatment outside the Rules in advance” (this being consistent with the rules as to admissibility of evidence in the context of entry clearance cases- “An applicant is not entitled to apply for LTE at a time when the requirements of the Rules are not satisfied, in the hope that by the time the appellate process has been exhausted those requirements will be satisfied and LTE will be granted by the appellate tribunal or court. This would be an illegitimate way of trying to jump the queue for consideration of the applicant's case and would represent an improper attempt to subvert the operation of the Rules. Sections 85 and 85A(2) prevent consideration of an application for LTE in this way.”);

- (§39(iv)) Accepted that the best interest considerations vis children is relevant in countervailing public interest but not a “trump card”;

- (§49) Discussed the part to be played by guidance issued by the SSHD as to the approach to be adopted when deciding cases (that it is not part of the Immigration Rules and therefore does not render all the Immigration rules a “complete code”- which in any event is immaterial to the approach to be taken in applying the rules pursuant to an Article 8 inquiry; whilst the reference to “exceptional circumstances” in the guidance is given a “wide meaning…. Thus, the cases covered by the "exceptional circumstances" guidance in the instructions to officials will fall within a wider or a narrower area in line with the changing requirements of Article 8 across the gamut of cases it covers, depending on the context in which the cases arise and their particular facts. As we have sought to explain above, the "exceptional circumstances" contemplated by the instructions are not always as narrowly confined as in the foreign criminal context discussed in MF (Nigeria) and the precarious relationship context discussed in Nagre.”). In other words the guidance applies across the board with the meaning attributed to references to “exceptional circumstances” varying according to the context of the case at issue and the Immigration Rules applying to such a case’

In applying the above principles the SSHD’s appeals against decisions of the FTT allowing appeals of individuals entry clearance notwithstanding they did not meet minimum income requirements, relied on post application circumstances, and on the unreasonableness of making further applications were allowed – see respectively §§65, 74, 80-81 and 87-89.

As a separate issue (§§92-104) the court discusses the approach to be adopted when considering applications for extension of time.

It to be emphasised that this is a judgment worthy in its significance of being read in full in order to further illuminate its summary set out above.

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