The Secretary of State for the Home Department v Uchenna Eucharia Izuazu

This is the Secretary of State’s appeal from a decision of Judge Keane sitting in the First-tier Tribunal given on 31 July 2012. This was originally a fast track appeal from a decision of the Secretary of State refusing Ms Izuazu leave to enter the United Kingdom on asylum and human rights grounds. We shall refer to Ms Izuazu as the claimant. The judge dismissed the asylum claim but allowed the claimant’s appeal under Article 8 ECHR by reason of her marriage in March 2012 to Julius Akinola.

The grounds of appeal submit that the judge erred in law in his Article 8 decision by failing to follow the provisions of the new Immigration Rules (HC 194) published on 13 June 2012 and stated to take effect on 9 July 2012 where the Home Secretary set out a scheme as to when leave to enter or remain would be granted on human rights grounds. This is an issue of considerable public importance as many decisions are being made to which the new rules have potential relevance.

Permission to appeal was granted on 3 August 2012 and the case taken out of fast track. There was a case management hearing on 12 September 2012 following which the appeal was listed before a panel of the UT for a day.

The claimant had been unrepresented before the First-tier Tribunal but she had subsequently secured the services of Luqmani Thompson and Partners before us. We acknowledge the assistance her representatives have provided to us to decide the points of principle and the appeal.

On 5 October 2012 she lodged a skeleton argument signed by leading counsel Raza Husain QC as well as Mr Fripp and a bundle of authorities in support of the appeal and a copy was served on the Home Office Presenting Officers Unit. It was, therefore, with considerable dismay that the panel constituted to hear this appeal received the news shortly before the case was called on at 10.00am Tuesday 9 October, that Mr Nath was asking for a photocopy of the court bundle as he had no or incomplete papers. It was with greater dismay that we received an application to adjourn the case to a new date as he did not consider himself sufficiently prepared to advance his own appeal.

We rejected this application given the history set out above and the need for a panel of the Tribunal to consider the important matters raised in the appeal. We adjourned the matter for one hour for further preparation to be undertaken and before we did so we posed some questions that we indicated we would like assistance on in due course. The hearing then proceeded and Mr Nath made submissions but acknowledged he was still unable to answer our questions. At the end of the hearing we issued directions giving a timetable for a written response to our questions.

What difference, if any, do the recent changes in the Immigration Rules have on the pre existing case law of the Supreme Court and higher appellate courts as to the learning on Article 8? If it is contended that the relevant tests for assessing whether an immigration decision interferes unjustifiably with family life have changed, how can rules achieve such a change?

Does the UKBA continue to accept that it is not reasonable to expect a British citizen party to genuine family life in the UK to relocate permanently abroad (paras 93 to 95 of Sanade and others [2012] UKUT IAC)? If not why not and how is it compatible with Dereci to require an EU citizen to live outside the EU?

Now that the rules make express provision for Article 8 claims to remain, is it accepted that the circumstances whereby a person who fails under the rules but may succeed under the law relating to Article 8 will be narrower and will be exceptional having regard to the new criteria? If not why not?

We received the response of the Home Office on 24 October and the claimant in reply on 30 October 2012. We are grateful to the parties for their written submissions. We append the Home Office submission to this determination as appendix A, in the light of the potential importance to other cases of the observations made and for completeness we append the claimant’s at appendix B.

We, nevertheless, take this opportunity to express our dissatisfaction at the appellant’s lack of preparedness in this case, although on what we were informed it does not appear to have been the individual responsibility of Mr Nath. This was the Secretary of State’s appeal on a profoundly important new issue for determination by this Tribunal with potential impact on many cases being heard daily across the country. Whenever an issue of this significance arises the Upper Tribunal is likely to constitute itself as a panel and deploy the most senior judges available to it at the time. It needs to give clear and comprehensive guidance to judges sitting throughout the United Kingdom as speedily as possible. Here there had been a case management hearing attended, we were informed, by a Home Office Presenting Officer where the importance of the issue would have been made plain in the listing arrangements. Whether or not the Presenting Officers’ Unit was aware that the President and a judge of the Court of Session were to sit on this appeal is not the point. The Tribunal is entitled to expect that any advocate before it will be properly briefed with the relevant documents, fully prepared to address the issues that everybody is aware arises, and is capable of addressing the issues orally when they arise. Not for the first time, we conclude that there has been a failure by UKBA of its duty of co-operation with the Tribunal to advance the over-riding objective of fast, fair and efficient adjudication.

As it happens the urgency of this case as a guideline decision has been mitigated by the decision of the UT in MF (Article 8–new rules) Nigeria [2012] 00393 (IAC) promulgated on 31 October 2012.

The claimant is a citizen of Nigeria. She was born in 1967, married in 1989 and has five children by a marriage that broke down between 2006 and 2008. From October 2005 to November 2007 she made a number of visits to the United Kingdom on multiple entry visas, the last of which was issued in October 2007 for five years. It was during these visits that she met Mr Akinola.

On 4 May 2008 the claimant entered the United Kingdom again as a visitor. On this occasion she overstayed her leave to remain by 10 months. She returned to the United Kingdom after a short break away and again over-stayed her leave to remain by two years. Subsequently evidence came to light that indicated that during this period she had started working in the United Kingdom using false identity papers.

In March 2012 she travelled to Nigeria with Mr. Akinola. She applied for entry clearance as a spouse and the application was refused in April 2012, because the ECO was not satisfied that the relationship between the parties was genuine or that the accommodation that Mr Akinola personally occupied (one room in a flat that was rented out to others) was sufficient for the couple and the claimant’s youngest daughter by her previous marriage.

An appeal was lodged but the claimant returned to the United Kingdom on the 16 May 2012 where she once more sought to enter as a visitor. On this occasion the false identity papers and false National Insurance number came to light. She was charged with offences in respect of these documents to which she pleaded guilty at the Magistrates Court on 18 May and was given a sentence of twelve weeks’ imprisonment. She was transferred to immigration detention on 29 June 2012. She then made a claim for asylum which she withdrew and then re-instated. The decision to refuse her leave to enter on asylum and human rights grounds was taken on 18 July 2012 and her appeal was heard before Judge Keane sitting at the Yarlswood detention and removal centre.

Notwithstanding this history of deceit, the judge found the claimant to be a credible witness and genuine in her fear of her violent former husband and of being the victim of serious crime in Nigeria. He nevertheless dismissed her asylum claim as it did not relate to criteria for protection and there was adequate protection available in Nigeria against the harm feared. No issue arises in respect of that decision on the appeal before us.

The judge also heard from Mr Akinola and another witness to the relationship between him and the claimant. He was satisfied that there was a genuine relationship of three years plus duration even though the parties had not been living together as man and wife. Mr Akinola was of Nigerian origin. He had come to the United Kingdom in 1989. He was now a British citizen. He had married and divorced in the United Kingdom. There was an adult daughter of the relationship who is a student who lived with her mother in the United Kingdom but kept in regular contact with her father. Mr Akinola lived in Hounslow and had stable employment as a clerical officer employed by a cargo despatch company.

The Home Office devoted nine paragraphs of its 61 paragraph letter to the Article 8 claim. The first five paragraphs disputed the factual basis of the relationship and concluded that it was not accepted “you have shown you are in a subsisting and long standing relationship with Julius Akinola”. The judge disagreed on the facts and no issue arises with respect to that finding.

The letter nevertheless went to consider “for completeness” the assessment of the case under the Appendix FM (Family Members) to HC 194. Two particular points were taken:-

The claimant was not in the United Kingdom as she had already been refused leave to enter at the time of the decision.

There were no insurmountable obstacles to family life continuing outside the United Kingdom namely by returning to Nigeria.

Having examined the application from the viewpoint of the new rules only, the Secretary of State’s conclusion was:

After he reached his conclusions of fact and his decision on the refugee claim, the judge at paragraph 22 onwards of his determination considered Article 8. He concluded that the claimant had established family life in the UK by reason of her relationship to Mr Akinola. He also found that she had a private life here by reason of her previous residence and wish to remain.

He then went on to consider the five questions posed by Lord Bingham in Razgar [2004] INLR 349 HL and concluded:

The claimant’s removal would interfere with the family life enjoyed by her and Mr Akinola.

The interference was serious enough to engage Article 8.

The interference was in accordance with the law and for the legitimate aim of the prevention of disorder or crime.

The central question in the appeal was whether the interference was proportionate and a fair balance between the interests of the community and the claimant and her husband.

The judge continued his analysis as follows

Two factors have led me to strike the balance, the essence of an assessment of the proportionality of a decision such as the decision under appeal, in favour of the appellant. First, drawing on those exclusively favourable findings of fact to which I have arrived in respect of the appellant’s …. contentions, I find that a particularly strong family life exists between the appellant and Mr Akinola”

He therefore allowed the appeal on human rights grounds.

The Secretary of State’s grounds of appeal were concise. There were in substance four in number and may be summarised as follows:-

The judge gave no consideration to Appendix FM 1 at all although it had been cited in the refusal decision.

He erred in asking the question whether it was reasonable to expect Mr Akinola to relocate to Nigeria rather than using the test under Appendix FM Section R-ILRP and the Section EX (b) Exception of whether “there are insurmountable obstacles to family life with that partner continuing outside the UK”.

The judge failed to give sufficient reasons for his findings on Article 8 and whether it was reasonable to expect Mr Akinola to relocate.

The judge failed to give sufficient weight to the legitimate aim of safeguarding the economic well being of the UK through effective immigration control and the public interest in removing her.

At the hearing Mr Nath clarified the appellant’s case by indicating that ground iv. above was intended to include the submission that the judge’s conclusions were wrong as a matter of law because they were irrational, in that no properly self- directing judge could legitimately have reached them on the findings of fact he had made.

HC 194 is a set of changes to the Immigration Rules laid before Parliament on 13 June 2012. It was accompanied by an Explanatory Statement indicating amongst other things that the purpose of the Rules was:

The House of Commons debated a motion tabled by the Government in support of these Rules on 19 June 2012. The motion was carried without a division. The conventional negative resolution procedure required by Immigration Act 1971 s. 3(2) was adopted in the House of Lords. Both Houses were thus content for the Secretary of State to adopt the statement of practice she has laid before them.

As a consequence, it has been submitted to us in the Secretary of State’s written submissions:

The Secretary of State submits in response to the first question we posed (“What difference, if any, do the recent changes in the Immigration Rules have on the pre existing case law…as to the learning on Article 8?”) that the Rules make a substantial difference to the case law and essentially restore the exceptional circumstances test disapproved of by the House of Lords in Huang v SSHD [2007] UKHL 11; [2007] 2 AC 167 because their Lordships were considering a set of immigration rules that did not spell out the UK’s response to Article 8 issues whereas the present rules before us do so.

The claimant, by contrast, in her reply to the Secretary of State’s written submission, states that the new rules can make no difference to the case law binding upon us since that is the law relating to Article 8 made in pursuit of the legal duties imposed by the Human Rights Act 1998, and the Rules, being only statements of executive policy do not have the force of law and cannot reverse or repeal authoritative judicial decisions.

In our judgment neither of the rival submissions can be accepted in full. We accept the claimant’s submission on the status of the rules, and accordingly agree that the rules cannot over-ride either the legal duty imposed by statute or the existing learning on that duty supplied by the higher courts, and (to the extent it is consistent with that learning) the Upper Tribunal. However, we do not accept the implicit submission that the new rules are irrelevant to the Article 8 balance required by the law to be conducted.

The Upper Tribunal has already observed in MF (Article 8-new rules) Nigeria (loc cit) and we agree that the rules are the rules. They are in force and clearly apply to any decision made after 9 July 2012 as this one was, unless and until they are struck down as being unlawful or irrational.

The status of immigration rules is well known and was recently examined by the House of Lords in Odelola v SSHD [2009] UKHL 25 [2009] 1 WLR 1230, from which the following points may be summarised:

We then turn to the separate question as to how the terms of the Immigration Rules can influence an assessment of whether an immigration decision is in accordance with the law, either generally (s. 84 (1)(e) NIAA 2002) or under s.6 of the Human Rights Act and whether the decision is compatible with the appellant’s Convention rights (s. 84 (1) (c).

It is obvious that respect for a claimant’s family and private life under Article 8 (1) is subject to proportionate and justified interferences in pursuit of a legitimate aim under Article 8(2).

There is nothing unlawful about the Secretary of State having published policies and practices designed to give effect to Convention obligations or aspects of the public interest considered to be weighty reasons justifying interference. Students of the history of immigration law and practice over the last 30 years will be familiar with a whole host of policies sometimes outside the rules and sometimes within them said to be designed to reflect Article 8 issues with respect to marriage by those with no leave to remain, serious criminal offending, the impact of removal on children, the period of irregular residence giving rise to a presumption of regularisation and so on.

Many of these previous policy statements had been withdrawn at the time that the House of Lords considered the case of Huang (above). In that case the submissions advanced on behalf of the migrants include the fact that the Immigration Rules had not been amended to incorporate all classes of human rights claim that may be recognised under Article 8 (see the Law Reporter’s summary of the submissions at 179 A-C); by contrast, where there was a relevant statement of policy, appropriate weight could be afforded to it (178 H).

Lord Bingham giving the judgment of the Appellate Committee at [16] in a passage relied on by the Secretary of State in her written submissions in the present appeal, noted:

We see no reason why a statement of policy as to when those with no other claim under the Immigration Rules will or will not be admitted or expelled, should not be expressed in the Immigration Rules, and when they are, appropriate weight should be given to it for the reasons given by Lord Bingham.

There is the further consideration, not explored in the submissions before us, but reflected in particular in the case law relating to Article 5 ECHR that although the rules and similar statements of policy do not have the force of law, they are considered to be part of the law for the assessment of whether an interference is “in accordance with the law” for rights that are balanced rights under the Convention : see Nadarajah v SSHD [2003] EWCA Civ 1768 [2004] INLR 139 cited and approved in Lumba and Mighty v SSHD [2011] UKSC 12 [2012] 1 AC 245 at [26] to [37], [206] and [302]. By analogy, a decision to interfere with Article 8 rights that was not in accordance with lawful policy, would, therefore, probably be considered as not in accordance with the law for the purpose of justifying an interference with Article 8 rights.

We accordingly further endorse the Upper Tribunal’s observation in MF that judges called on to make decisions about the application of Article 8 in cases to which the new rules apply, should proceed by first considering whether a claimant is able to benefit under the applicable provisions of the Immigration Rules designed to address Article 8 claims. If he or she does, there will be no need to go on to consider Article 8 generally. The appeal can be allowed because the decision is not in accordance with the rules.

Where the claimant does not meet the requirements of the rules it will be necessary for the judge to go on to make an assessment of Article 8 applying the criteria established by law.

When considering whether the immigration decision is a justified interference with the right to family and/or private life, the provisions of the rules or other relevant statement of policy may again re-enter the debate but this time as part of the proportionality evaluation. Here the judge will be asking whether the interference was a proportionate means of achieving the legitimate aim in question and a fair balance as to the competing interests.

The weight to be attached to any reason for rejection of the human rights claim indicated by particular provisions of the rules will depend both on the particular facts found by the judge in the case in hand and the extent that the rules themselves reflect criteria approved in the previous case law of the Human Rights Court at Strasbourg and the higher courts in the United Kingdom.

For example, paragraph 399 of the Immigration Rules deals with family life claims by people who are liable to deportation. Paragraph 398 provides that those who have received a sentence of between one and four years imprisonment or have received a sentence of less than twelve months imprisonment but are persistent offenders can expect that the public interest in deportation will normally outweigh respect for family life unless paragraph 399 applies. This paragraph applies where the child is a British citizen, has lived continuously for at least seven years immediately preceding the immigration decision, and it would not be reasonable to expect the child to leave the UK. However in addition there must be “no other family member who is able to care for the child in the United Kingdom”. Focusing simply on the last requirement, it is very difficult to see how any weight could be given to this requirement in an Article 8 evaluation under the law as it is clear that the child’s best interests are a primary consideration to be taken into account, and a child’s best interests would normally require the maintenance of a genuine and effective care by both parents rather than a default position of the absence of any family member to care for the child. On the other hand the identification of seven years residence in the United Kingdom, may be a helpful starting point for the assessment of when it would be reasonable to expect a child of whatever nationality to have the company of a caring parent in the United Kingdom.

The decision under appeal was made after 9 July 2012 and so the new rules clearly apply. Unlike the Tribunal in MF we do not have to grapple with whether the rules can apply to immigration decisions that have been taken before the new rules were brought into effect. HC 194 Appendix FM is expressed not to apply to any application for entry clearance, leave to remain or indefinite leave to remain that had been made and not decided before 8 July, but note that Rule A 362 provides:

The rules themselves are silent as to their application to deportation decisions that are made and the appeal determined before 9 July but may have to be re-examined later. It is at least clear that HC 194 cannot be used to undermine judicial decisions allowing an appeal on Article 8 grounds taken before they came into effect. A retrospective deprivation of the benefit of a favourable decision under the law would be offensive to basic public law and human rights principles. Equally we can see compelling reasons why a claimant who has or should have won an appeal that has been determined by a judge of the First-tier Tribunal before the new rules had come into effect should not be deprived of such a benefit, by virtue of the fact that the judge had made an error of law and the matter had to be remade. Otherwise, we can see that a fresh judicial decision on an Article 8 claim made after 9 July 2012 should take into account and give appropriate weight to the Secretary of state’s policy as set out in the rules.

We now return to consider the Secretary of State’s submissions on the status of HC 194 and its effect on Article 8 decision making where the judge has to decide whether the decision is in accordance with the law. In our view, she over-states the significance of the rule change.

First, the reference to Parliament’s approval of HC 194 seems an attempt to approximate the rules to a statutory assessment of the balance between competing interests such as that considered by the House of Lords in Kay v Lambeth Borough Council [2006] 2 AC 465 on which the Secretary of State placed reliance in her submissions in the case of Huang (loc cit) see [17].

We cannot agree, for the following reasons:

Lord Bingham’s answer to the point remains a good one:

Only the Parliamentary process for primary legislation permits a clause by clause discussion of the measures, with opportunity for amendments and revision.

By comparison, we accept the claimant’s contention that the procedure adopted here provided a weak form of Parliamentary scrutiny: see R (Stellato) v SSHD [2007] UKHL 5, [2007] 2 AC 70 at [12].

There may have been more active debate of the new rules in the House of Commons than is often the case under the negative procedure resolution, but the House of Commons is not Parliament and it has long been the law that a resolution of the House of Commons is not given supremacy akin to primary legislation by the court: see Stockdale v Hansard (1839) 9 A and E 1. The position has been succinctly summarised by A.W.Bradley and K D Ewing Constitutional and Administrative Law (15 ^th Edition 2011 p.54):

Just as in the case of Huang , Parliament has not altered the legal duty of the judge determining appeals in both Chambers, to decide on proportionality for him or herself.

A claimant who relies on Article 8 will by definition have failed to succeed under the rules but may succeed under the law on Article 8 grounds despite the provisions of the rules. A failure to comply with the rules thus remains the starting point of the Article 8 inquiry and not its conclusion.

There is a significant difference between broad issues of social policy and individual immigration decisions where there is private and/or family life to be respected. This is not a situation where Parliament has chosen to interfere with the rights of property holders by enabling tenants to enfranchise see ( James v United Kingdom [ 1986] 8 EHRR 123, or when a court is able to prolong residence as a home beyond legal entitlement ( Kay v Lambeth London Borough Council [2006] 2 AC 465).

We note, in any event, that as the Article 8 case law has developed Pinnock v Manchester Corporation [2011] UKSC 6 and after, there are more grounds to suggest that greater weight must be given to individualised consideration than was suggested to be the case in Kay .

Second, we are equally unimpressed with the submission that following the adoption of HC 194 and Appendix FM, the test to be applied by the judge in deciding whether the decision is in accordance with the law is whether there are “exceptional circumstances” for allowing the appeal notwithstanding the absence of compliance with the rules:

Article 8 decisions apply to a wide variety of people: some may be outside the UK and seeking entry clearance to enter; others may be waiting a first decision on leave to enter albeit physically present, some may have entered irregularly before establishing private and family life; others will have established such private and family life during periods of lawful residence and have had the reasonable expectation that their future lay in the UK.

One size does not fit all. It is not possible to apply one set of criteria, such as whether there are ‘insurmountable obstacles’ to these divergent cases, where the case law indicates that a fact sensitive assessment is necessary. The Upper Tribunal made similar observations in its decision in Sanade and others [2012] UKUT 468 (IAC) [2012] Imm AR 597 before the new Rules were adopted at [35] and [37]. The House of Lords has deprecated the test of exceptional circumstances in Huang and further explained why in EB Kosovo (see below at paragraph 56 below). In our judgment these observations remain as true after the new rules came into force, as before.

The package of changes made in regulating the admission of family members, grant of leave to remain or their expulsion are generally considerably more rigorous than previous practice. We note the Secretary of State’s response to our question 1 and accept that HC 194 and Appendix FM does not reproduce every negative factor that has been identified in the case law of domestic and international courts. Nevertheless, it imposes very exacting requirements in a number of circumstances: minimum income at significantly higher levels than subsistence, continuous residence for 20 years in private life claims and in certain cases the absence of any ties; insurmountable obstacles to cohabitation by spouses and the like. The ‘in accordance with the law’ limb of the appeal is thus likely to arise as a real issue in more rather than fewer appeals.

Since the hearing and in the course of making this determination, we have become aware of the decision of Lord Brodie in the case of MS v SSHD [2013] CSOH 1 9 January 2013. This was a fresh claim judicial review case in which it was not necessary to analyse the particular provisions of the new rules in any detail or the case law of the higher courts in the United Kingdom on issues addressed in part by the new rules and where the factual foundation of the claim did not lend itself to any feature out of the ordinary. Whilst we note some difference in emphasis at [28] to [31] and our observations above, we do not detect any conflict in approach as to the function of a judge in an Article 8 appeal where family life is indeed engaged.

Third, we do not accept that all the criteria set out in HC 194 accord with the criteria for an Article 8 assessment established by the existing case law. The law relating to the best interests of minor children resident is one such issue, that we have already noted. We share the concerns of the Tribunal in MF that provisions of the Appendix FM do not appear to reflect the principle that a primary consideration in immigration decision making is the welfare and best interests of the child. The more the new rules restrict otherwise relevant and weighty considerations from being taken into account, the less regard will be had to them in the assessment of proportionality. We do not need to consider this further in the present appeal case as there are no such children.

However, the decision does rely on the fact that the claimant fails under Article 8 because she cannot bring herself within the exception of ‘insurmountable obstacles’. In our judgment, to reject a claim under Article 8 because the test of insurmountable obstacles is not met as the Secretary of State did at [17] above is to fail to comply with principles of the established law.

The Secretary of State disputes that and submits that “insurmountable obstacles” is the test clearly established in the Strasbourg case law. Mr Nath referred us to Rodrigues da Silva and Hoogkamer v Netherlands (2006) 4th Section [2006] ECHR at [39]:

Similar statements have been made recently in Nunez v Norway [2011] ECHR 1047 at [70] and Antwi v Norway [2012] ECHR 259 at [89] to [103]; we understand that the case is to be heard in the Grand Chamber.

We acknowledge that in a number of Strasbourg decisions, different sections of the European Court of Human Rights have stressed that where initial entry has been unlawful or whether family life has been established at a time where status was precarious, it will only be exceptionally or where there are insurmountable obstacles to the family life being transferred abroad that removal will be a violation. We note that there is, therefore, some tension between those cases where these criteria are used and some of the decisions of senior courts in the United Kingdom. However, whereas the Strasbourg Court refers to this being one of several factors to consider (and others that were decisive in Nunez included the best interests of the child) HC 194 imposes a test that has to be met for leave to be granted. This turns a factor in the case into a minimum requirement to be always met. We do not read the Strasbourg cases as doing this.

Further, where family life was established through lawful residence, the Grand Chamber in Boultif v Switzerland [2001] did not refer to insurmountable obstacles but posed a different question in its guidance at [48]:

It has been repeatedly stated in national jurisprudence laid down by the higher courts in the UK that in none of these cases was Strasbourg laying down a test for engagement of Article 8 as opposed to reaching a decision on proportionality in the particular case. The requirement for exceptional circumstances or insurmountable obstacles has been authoritatively declared to be an erroneous one in the Article 8 immigration context by the House of Lords in Huang [2007] UKHL 11 at [20], EB Kosovo [2008] UKHL 41 at [8] [12] [18] [20] [21] and by the Court of Appeal on innumerable occasions including LM (DRC) [2008] EWCA Civ 325 at [11] and [13]; VW (Uganda) [2009] EWCA Civ 5 at [19] and [24]; JO Uganda [2010] EWCA Civ 10 at [14] to [15] and [23] to [26].

Whilst it is open to Parliament to change the law by primary legislation unless and until it does so these decisions are binding on the Upper Tribunal and will be followed by it.

Even if it were open to us to do so, which it is not, we would further reject any implicit submission that these decisions are contrary to the Strasbourg jurisprudence. In addition to the points we have made at [56] and [57] above, we observe that as a matter of fundamental principle in its international supervision of the application of Article 8 the European Court of Human Rights as an international court applies minimum standards rather than a uniform approach binding on every contracting state. The principle of subsidiarity affords a margin of appreciation to the institutions of the contracting state and the national authorities are better placed than the international court to conduct a primary examination of the competing considerations. Those authorities include the courts and tribunals called upon to make the assessment.

For example, the House of Lords has stated on a number of occasions that in assessing the proportionality of an interference with rights in United Kingdom law the question is whether the interference is no more than necessary. This is an application of the least intrusive principle formulated by Lord Steyn in R v Secretary of State for the Home Department ex parte Daley [2001] UKHL 26; [2001] 2 AC 532. This approach was applied in immigration cases by Huang (supra). The Supreme Court has recently affirmed this in Quila [2011] UKSC 46. At [45] Lord Wilson said:

Lord Wilson concluded at [58]

By contrast the European Court of Human Rights generally contents itself with the assessment of whether the interference can be justified because it represents a fair balance of the competing interests rather than the least intrusive way of achieving the legitimate aim. However, Strasbourg has never suggested that the Daly/Huang approach is inconsistent with Article 8 ECHR, and similarly has never suggested that it is inappropriate for the national court to ask whether it is reasonable to expect the couple to relocate the claimant’s country of origin. We do not explore how this principle applies in deportation appeals as opposed to considerations of policy. We note that in general if it is concluded that deportation or removal is necessary as a proportionate measure to protect a public interest recognised by Article 8(2) nothing less will do, although in particular cases the length of the exclusion and the capacity for reform, particularly of a young offender may be relevant considerations.

Apart from the principle of subsidiarity, there are further good reasons why the national approach may be more inclusive than the Strasbourg criteria. The national court has to apply the Convention through the prism of other legal obligations, for example the European Convention on Establishment 1955 Article 3 that affords particular weight to 10 years lawful residence, or to the consequences of nationality of the European Union in respect of measures that force an EU national to leave the Union in breach of their right of residence (see the Upper Tribunal’s conclusions in Sanade and others (above) applying the principle established in Ruiz Zambrano ; see also Harrison (Jamaica) v SSHD [2012] EWCA Civ 1736 at [63] to [68] ).

The uniform application of the Immigration Rules is not a legitimate aim in itself justifying interference with Article 8 rights but a means of maintaining public safety, the economic well being of the country, prevention of disorder or crime, the protection of health or morals and the rights and freedoms others, (see Blake J in R (Mansoor) v SSHD [2011] EWHC 832 (Admin) [34] to [38] noted without disapproval in SSHD v Treebhowan; SSHD v Hayat (Pakistan) [2012] EWCA Civ 1054, at [76] per Elias LJ). Therefore, the fact that a person cannot meet the requirements for leave under HC 194 does not mean that the Secretary of State can for that reason alone demonstrate a proportionate and justified interference to prevent disorder.

We agree with the claimant’s submission that reliance on the authorities dealing with Article 8 in the context of extradition will not normally be helpful in the context of deportation as there the legitimate aim of prosecuting criminals pursuant to an extradition agreement is significantly different.

Accordingly, we conclude there can be no presumption that the Rules will normally be conclusive of the Article 8 assessment or that a fact sensitive inquiry is not normally needed. Indeed, the conclusion under the Rules may often have little bearing on the judge’s own assessment of proportionality. The Secretary of State may decide to only grant leave to remain in cases where there would be insurmountable obstacles to the family relocating to any country but the judge is unlikely to give weight to that factor in the proportionality assessment if he or she concludes that the obstacles to relocation are substantial and in the circumstances it would not be reasonable to expect the other family members to relocate there, whether for reasons of nationality, length of residence, the best interest of the child or otherwise. If there is no presumption that the provisions of the rules reflect and apply the balance between the competing considerations, exceptional circumstances cannot be the test to be applied under the law.

However, when the judge makes his evaluation of proportionality under the law, he or she is entitled to have regard to particular factors identified in the international and national jurisprudence whether they are reflected in the rules or not. The cases continue to make relevant distinctions depending on the circumstances between criminal conduct and a failure to meet the requirements for continued residence; between criminality of an intermediate degree of seriousness and lengthy sentences for conduct of the highest degree of seriousness; between offenders whose propensity to re offend makes them a danger to the host community and those whose conduct is unlikely to be repeated; between those who were lawfully admitted when family life arose and those who were not; between those who have resided here for many years or most of their life and others; between those whose family members are UK nationals and those who are not; between those irrespective of nationality who have strong and substantial ties with the claimant’s country of origin and those who do not.

The Strasbourg case law indicates that weighty reasons are needed to justify expulsion of someone who has had long residence as a child or that would risk separating devoted partners in a family relationship. It may, by contrast, require weighty reasons or exceptional factors to outweigh the strong justification for the expulsion of those who entered by deception, remained by fraud, established their relationship in the host state in precarious circumstances and never have had an expectation of being permitted to remain to conduct their family and private life in the host state.

The use made of such guidance by the Upper Tribunal and the application in the course of the evaluation of the term exceptional circumstances is not a reference to a definitive test or otherwise unlawful, but is an appropriate way of setting the context for the particular decision (see Harrison (Jamaica) v SSHD [2012] EWCA Civ 1736, 21 December 2012 at [72] to [74]).

We now return to the case in hand and consider each of the four grounds of appeal noted at [23] above.

Ground One : It follows from what we have said above, that a judge considering a decision made on or after 9 July 2012 should consider whether the claimant complies with HC 194 and Appendix FM. Judge Keane did not do so. It is accepted to be the case, that the claimant did not comply with the Rules. However, any error of law in failing first to assess the claim under the Rules would be immaterial if the assessment of the Article 8 case as a matter of law apart from the Rules was satisfactory.

Ground Two : Judge Keane made no error of law in considering whether it was reasonable to expect Mr Akinola to relocate to Nigeria. The requirement of EX 1 (b) that “there are insurmountable obstacles to family life with that partner continuing outside the UK” may be a requirement of the Secretary of State’s policy but it is not a requirement for the judge to apply in considering Article 8.

Ground Three : Judge Keane gave reasons at paragraph 29 of his decision for his conclusion that it would not be reasonable for Mr Akinola to move permanently to Nigeria. He is a British citizen, he has a daughter who is a student here, he has resided here for 23 years and has stable employment and a home here. It is not alleged that his decision is irrational or perverse. In determining whether there is an error of law, we do not need to consider whether we would have reached this conclusion for ourselves. These are matters of assessment for the judge and we find no error of law.

Ground Four : We accept that there was a material error of law made by the judge in this aspect of his considering whether the decision was in accordance with the law. He nowhere took into consideration the precarious immigration status of the claimant at the time of the marriage and the decision to refuse her admission. He should have done so. The claimant was in the United Kingdom as a visitor and had no claim to remain for any other purposes. Her visa was granted on the basis that she had satisfied the ECO that she would leave the UK at the end of each visit. From 2008, when her relationship with Mr Akinola deepened she was in breach of the terms of leave to enter and remained without authority, moreover she used false documents, including a forged settlement visa to enable her to work. It is unclear why she needed to work if she was a dependant of Mr Akinola’s before her return to Nigeria.

In Nunez v Norway June 2011 the Fourth Section of the European Court of Human Rights stated the principles for assessment where a person had entered the country irregularly and sought to remain on the grounds of a family relationship and concluded at [70] :-

In this case the claimant and her husband must have known she was developing family life when her immigration status was precarious, indeed when she had overstayed her leave to remain. In addition to breaching immigration control she had employed false documents to obtain unlawful employment. She was prosecuted for this conduct. The claimant did maintain strong ties to Nigeria albeit that her previous marriage had broken down through her husband’s violent conduct. She returned regularly to Nigeria and had married there. The decision under appeal was taken after her application for entry clearance as a spouse had been rejected and when she was seeking to enter the UK from Nigeria. As in the case of Nunez , this combination of factors meant that weighty reasons existed to refuse her entry and justify her removal to Nigeria.

For reasons we have already explained this is not to adopt a general test of exceptional circumstances, but to identify the need for weighty factors in favour of the claimant in this class of case. The Upper Tribunal has consistently had regard to the circumstances in which the family life was contracted and the degree of deception or breach of immigration control. All judges making such decisions must do so.

The reasons relied on by the claimant for why a human rights analysis required her admission were not strong. By contrast with the case of Nunez there were no interests of minor children to consider. The claimant and her husband had not founded a family of their own, and there was no evidence of any ties between the claimant and Mr Akinola’s daughter by a previous marriage. In any event that daughter was now an adult and living in a separate household. The claimant had returned to Nigeria to get married, and was seeking admission in a false capacity as a visitor when her intentions were to remain with her husband. HC 194 Appendix FM makes it necessary that an applicant for leave on Article 8 grounds must not be in the UK as a visitor, with leave for less than six months (save as a fiancé (e)) or with temporary admission. Whilst we do not accept that these requirements are fatal to an Article 8 claim, they serve to emphasise how precarious this claimant’s connection with the UK was and how recent were her continuing connections with Nigeria.

For these reasons we are satisfied that not only did the judge fail to remind himself that the family life was established in precarious circumstances, but overall he reached a conclusion in the claimant’s favour that he was not entitled to reach. The strength of the public interest in removal and the weakness of the right to respect for family life established in these circumstances, was such that any properly self-directed judge was bound to conclude that the Secretary of State had justified refusal of admission as a proportionate measure in the interests of prevention of crime and disorder, irrespective of the consequences to claimant and her husband. This is a case where Lord Bingham’s observations cited at [37] are particularly applicable. There is a material error of law and we set aside the decision allowing the appeal.

In the light of this conclusion, we conclude that we can re-make the case on the information before us without a further hearing, as we informed the parties we anticipated would be the case, in the event that we found the conclusion irrational. However we ascertained at the hearing that Mr Akinola is a dual Nigerian and British national. It is clear that he has maintained his ties with his home country, including of course, the fact that he returned to marry the claimant there in March 2012.

Whilst we did not find an error of law in the judge’s conclusions that it would not be reasonable for Mr Akinola to live in Nigeria, now we have found an error of law it is open to us to re-visit the question. We do not disturb the primary facts found but note that we now know that Mr Akinola is a dual national. He has retained his Nigerian nationality and has visited the country recently. We do not think that the indefinite separation of this couple is inevitable if she is removed to Nigeria. Even if Mr Akinola had understandable reasons to want to remain in the United Kingdom and relocation to Nigeria would be a hardship for him, we have seen nothing to suggest that he would not be able to follow his wife to Nigeria.

In the particular circumstances of this case, given the circumstances in which the relationship arose we conclude that it is not unreasonable for him to have to decide between retaining his residence in the United Kingdom and following his wife to Nigeria for the time being to continue family life there. In any event, the fact that it may not be reasonable to expect the other family members to relocate does not mean that in every case deportation or removal is disproportionate or not justified.

The facts are materially different from those of the case of the successful appellant in Sanade where it was not reasonable to expect the spouse to leave the EU as in that case the claimant had been granted indefinite leave to remain before committing the offence and requiring the mother to leave would also require the minor children to be compelled to do so. The UKBA continues to accept that EU law prevents the state requiring an EU law citizen from leaving the United Kingdom, although contends with good reason, that this is to be distinguished from a case where an independent adult can chose between continued residence in the United Kingdom or continued cohabitation abroad.

Taking all the facts found below in the claimant’s favour into account, it is clear that the Secretary of State’s decision is in accordance with the rules and the applicable policy and is not unlawful. In our judgment it is taken in support of a legitimate aim of protecting public order and the rights and freedoms of others, is a proportionate and fair balance in all the circumstances and thus a justified interference with Article 8 rights.

The determination of the First-tier Tribunal involved the making of an error on a point of law.