Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC)

An excellent new case from the Upper Tribunal which factors into some previous postings about the new appellate regime. A mercifully short post here- but essentially in the decision of Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC) the UT President Mr Justice McCloskey found that, in the example of a visitor's appeal, the extent to which the immigration rules were met was a weighty consideration, though not determinative (and technically not justiciable since visitors do not enjoy full appeal rights).

This is very important since its confirmation, to an extent, of the argument that even if the new appeals regime under the 2014 act limits appeal rights in many cases to only human rights grounds, it is still relevant to examine the terms of the applicable immigration rules. This means, I think, that if you have a PBS case where a refusal is maintained under the immigration rules and through administrative review, an appellant with an existing nexus of life here would have a prospect of maintaining immigration rules style arguments in the context of the 3rd Stage of the Razgar test at an appeal- namely is the process and substance by which an appellant finds themselves before a tribunal with a human rights appeal in accordance with law.

It is another positive decision from the new President and confirms what most lawyers already thought must be the case, despite the confusing numbers of dense, complex and hard to understand judgements on human rights/ rules and proximity.

It further confirms that the current obsession with legislating to deal with perceived problems with immigration is really not a solution. A bit more honesty from government (who have very good lawyers) about the efficacy of these changes would be welcome but unlikely.