The Upper Tribunal has recently published two further Presidential determinations relating to the issue of Article 8 ECHR (Treebhawon and Others (NIAA 2002 Part 5A – compelling circumstances test)  UKUT 00013 (IAC)) and the issue of the children’s best interests (Kaur (children’s best interests / public interest interface)  UKUT 00014 (IAC)), post-Immigration Act 2014. Both determinations are framed as the second parts of earlier determinations published in 2016.
It is notable that the President of the Upper Tribunal comments that ‘[t]hose who adjudicate, practise, teach and study in this field may struggle to find a clear formulation of the Article 8 test applicable in a case [where there is no element of criminality or deportation].’ (para 42 Treebhawon and Others, emphasis added) The President goes on to note that ‘the domination of cases involving foreign national offenders in the jurisprudence of the Court of Appeal has rather eclipsed the illegal entrant or unlawful overstayer who has been convicted of no offence.’ This is very true, and until the Supreme Court issues its judgment on the much anticipated Article 8 cases on which it heard submissions at the start of 2016, perhaps these cases will have to be relied upon when submitting to the Tribunal on an Article 8 case.
Treebhawon and Others deals with Part 5A of the Nationality Immigration and Asylum Act 2002 (as inserted by the Immigration Act 2014) which sets out in statute a number of factors to which a decision-maker must have regard when considering Article 8. In a dense and lengthy determination, the President clarifies that where the case of a foreign national who is not an offender does not satisfy the requirements of the Article 8 regime of the Immigration Rules, the test to be applied is that of ‘compelling circumstances’. This follows on from the relatively recent judgment of Sales LJ in Rhuppiah v Secretary of State for the Home Department  EWCA Civ 803.
The Treebhawon case concerned a father and four children, all nationals of Mauritius, who had resided unlawfully (but without any issue of criminality) in the UK for varying periods of time. Despite giving primacy to the best interests of the children, the Tribunal ultimately concludes that the appeals should be dismissed. It is of note that in doing so the Tribunal remarks that ‘[w]hile as human beings we reach this conclusion without enthusiasm, as judges we do so without any real hesitation.’ Interestingly, the Tribunal further remarks that to remove the children in the midst of their academic year would likely be disproportionate and that it would be ‘surprising’ if the Secretary of State were to insist on removal prior to that point.
The Kaur case confirmed inter alia that:
(1) The seventh of the principles in the Zoumbas code does not preclude an outcome whereby the best interests of a child must yield to the public interest.
(2) This approach has not been altered by Part 5A of the Nationality, Immigration and Asylum Act 2002.
(3) In the proportionality balancing exercise, the best interests of a child must be assessed in isolation from other factors, such as parental misconduct.
(4) The best interests assessment should normally be carried out at the beginning of the balancing exercise.