Even before Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803, lawyers and Judges have engaged in mental gymnastics worthy of the Olympic stadium when applying Article 8 of the European Convention on Human Rights in immigration cases.
It’s complicated.
Parliament added to the complexity on 28 July 2014 by introducing a new statutory human rights framework to guide and instruct Judges on how the balance should be struck in Article 8 based appeals that concern private and family life. [1] For an introduction to this area, please see the resources on my publications page.
I’ve kept a running tab on the case law in this area. Although the appellant in Rhuppiah failed, the case adds some important and helpful clarifications on the operation of the new framework and I have added it to the table.
The key conclusions are:
- The question of whether a person’s immigration status is precarious depends on their circumstances (§ 44, also see AM (S 117B) Malawi [2015] UKUT 0260 (IAC) at §§ 32 to 33 and Deelah and others (section 117B – ambit) [2015] UKUT 00515 (IAC) at § 32).
- Parliament’s human rights framework must produce results that comply with Article 8 (§ 45). See also NA (Pakistan) v Secretary of State for the Home Department[2016] EWCA Civ 662 at §§ 26 and 31, which I wrote about here.
- There are provisions in the new framework that declare certain factors to be in the public interest. They include sections 117A(2), 117B(1), (2), (3), and 117C(1). The effect of these provisions is that they define the public interest and Judges cannot hold that such factors are not in the public interest (§ 49).
- The effect of those provisions which “require” that certain outcomes in the public interest (such as sections 117B(6) and 117C(3) and (6)) is that Parliament has specified what the outcome should be in such cases (§ 51). The message is clear:
It would not be open to a court or tribunal to hold that, contrary to the statement in this subsection, the public interest does require removal.
- The effect of the provisions that require “little weight” to be attached to family life established while a person is in the UK unlawfully and/or a private life established while a person’s status is precarious are:
generalized normative guidance [that] may be overridden in an exceptional case by particularly strong features of the private life in question, where it is not appropriate in Article 8 terms to attach only little weight to private life… for a case falling within section 117B(5) little weight should be given to private life established in the circumstances specified, but that approach may be overridden where the private life in question has a special and compelling character. (§ 53)
- Section 117B(2) and (3), which declare that it is in the public interest for a person to be able to speak English and be financially independent cannot be positive factors that weigh in a person’s favour. Where present they are neutral factors. Where absent they are negative factors (§ 62). We already knew this from AM (S 117B) Malawi at §§ 15 and 18.
- Lastly, “financially independent” means someone who is financially independent from others (not just independent from state support) (§ 62).
It shouldn’t require our brightest legal minds to tell us that Parliament’s new statutory framework should not violate the very human rights it seeks to regulate. Far too much time and ink has been spent thrashing out fairly obvious points. The Home Office’s approach is rarely straightforward.
For some time, I (like many other practitioners) have been trying to convince Judges not to apply section 117B(4) and/or (5) mechanically. On their face, these sections resemble blunt instruments that can easily violate Article 8 rights if mishandled. It should be easier to prevent such outcomes now with an emerging line of authority in Rhuppiah (at § 53), and the Upper Tribunal case of Rajendran (s117B – family life) [2016] UKUT 00138 (IAC) (at § 35).
While the point remains undecided, there is some force in the argument that a literal application of section 117B(4) and (5) is incompatible with the Article 8 and the section ought to be read down so as to avoid an unlawful breach of section 6 of the Human Rights Act 1998.
Rhuppiah has big implications, particularly for the ‘7-year rule‘ provision in section 117B(6). While it is difficult to reconcile with the decision on this point in two recent Court of Appeal cases (MA (Pakistan) and MM (Uganda)), the conclusion at § 51 in Rhuppiah means that a person who meets the 7-year rule should not be refused leave. End of.
Some argument should be anticipated not least because there are now have 3 Court of Appeal decisions pulling in different directions on the issue of whether a person who meets the 7-year rule (as contained in section 117B(6)) is entitled to an automatic win under Article 8, or whether other factors like their immigration history and conduct come into play. The Supreme Court may need to weigh in and reset matters.
Ongoing uncertainty on such a fundamental provision in the UK’s immigration law has a very real, disruptive effect on the lives of those seeking to settle here. None of this inspires much confidence in Parliament’s ability to replace the Human Rights Act 1998 with a British Bill of Rights, leaving aside the questionable wisdom of such a project…
Hugh Southey QC and David Sellwood acted for the Ms Rhuppiah, instructed by Wilsons Solicitors
[1] Part 5A of the Nationality, Immigration and Asylum 2002.