Unsurprising judgement on the new rules from the Upper Tribunal

The Upper Tribunal has ruled on UKBA's rule changes of July this year in unsurprising terms. MF (Article 8 – new rules) Nigeria [2012] UKUT 00393 (IAC) essentially establishes what most practitioners in the field already suspected, that attempting to exhaustively and comprehensively define (limit) article 8 rights using the framework of the Immigration Rules was incompetent and fairly pointless. The decision is concerned with deportation , however it has a bearing in general with a detailed headnote. The critical issue is that UKBA will now, in all circumstances, rely upon the Immigration Rules to decide a claim that removal or refusal would breach article 8. These rules are restrictive and difficult for many to meet, they also fail to really consider the often important factual differences between cases and the consequent impact of removal on those concerned. What the Tribunal says is that an Immigration Judge must clearly decide if an appellant can meet the terms of those rules, but that after doing so there is still an obligation to consider article 8 in the normal way, with a fact based assessment and careful consideration of the important and reasoned jurisprudence.

This is basically what anyone reading the changes thought in any event. The idea that the UKBA could restrict a judge's consideration using the rules, which are a curious hybrid of black letter law and policy, was seemingly a basic legal error. Particularly when the rules themselves are subordinate to primary legislation, including the Human Rights act. Further there was no change to the grounds of appeal permitted by the Nationality, Immigration and Asylum Act 2002 which sets the statutory framework for the appellate system.  Therefore, rules aside, an appellant could always ask a Judge to consider a breach of article 8 under s84(1)(c), (e) or (g), once a ground under s84(1)(a) had been dispensed with. The Tribunal further identified that the basis for allowing an appeal under s86(3)(a) is a consideration of the law in general, not what is contained in the immigration rules exclusively (as has always been the case).

"Even if a decision to refuse an Article 8 claim under the new rules is found to be correct, judges must still consider whether the decision is in compliance with a person’s human rights under s.6 of the Human Rights Act ( see s.84(1)(c), (g) and (e) and s.86(2) and (3) of the 2002 Act) and, in automatic deportation cases, whether removal would breach a person’s Convention rights (s.33(2) UK Borders Act 2007)."

The real question must be what the government expected to achieve with the changes. It may simplify things for caseworkers, but just transfers the duty of consideration to the Tribunal. Perhaps there is a departmental cost saving to UKBA which the Ministry of Justice must now assume. The legal competence of taking this step must have been apparent. The UKBA's original justification for the changes almost deliberately misapplied the ratio of Huang and sought to make substantial changes by a non-democratic negative resolution procedure in Parliament. A cynic might say that the real intention is to force a showdown with the tribunal and use this (ignoring the facts and law) to simplistically suggest a defiance of government policy and help primary legislation through parliament. But this is just speculation in the absence of any clearly understandable objective being apparent.

In any event it seems normal service is resumed until the next round of decisions. Watch this space for an inevitable Tribunal judgement on Appendix-FM-SE another questionable legal step after the Supreme Court defeat in Alvi.