Izuazu (Article 8 – new rules) [2013] UKUT 00045 (IAC) - Case Summary

Following the amendments to the Immigration Rules on 9th July 2012, when Appendix FM was introduced to address applications for leave to enter or remain in the UK by family members, there has been concern that the current rules as drafted do not adequately reflect the UK’s obligations under Article 8 of the European Convention on Human Rights.

The new Immigration Rules were considered by the Upper Tribunal previously in MF (Article 8–new rules) Nigeria [2012] UKUT 00393 (IAC) in which it was held that they do not accommodate all categories of Article 8 claims.

A second determination has now been handed down by the Upper Tribunal in which the Tribunal considers Appendix FM of the Immigration Rules and the interplay with Article 8 in more detail.  The case is Izuazu (Article 8 – new rules) [2013] UKUT 00045 (IAC), heard by an authoritatively constructed panel of judges in the Upper Tribunal; the President of the Tribunal, Mr Justice Blake, Lord Bannatyne and Upper Tribunal Judge Storey.

The facts

The case concerned a national of Nigeria who had raised a claim to private and family life under Article 8 of the European Convention on Human Rights as part of a claim for asylum. She had travelled to the UK previously, with periods of overstaying and having obtained employment by using false identity papers. Whist in the UK she met her husband, a dual British/Nigerian citizen and argued that her removal would interfere with her right to family life under Article 8.

The Secretary of State refused her asylum application and gave consideration to her family life claim. This was considered with reference to the new Immigration Rules introduced on 9th July 2012 and also under Article 8. The Secretary of State refused her application, stating that there were no insurmountable obstacles to family life continuing outside the UK.

On appeal, the Immigration Judge considered her claim to family life with reference solely to Article 8. The appeal was allowed on the basis that it would be unreasonable to expect her husband to leave the UK and to travel to Nigeria in order to continue the family life.

The Secretary of State appealed the determination of the Immigration Judge on a number of grounds, principally on the basis that the Judge should have considered the appeal with reference to Appendix FM of the Immigration Rules and that the Judge was wrong to impose a test of ‘reasonableness’ when the Judge ought to have considered whether there were any ‘insurmountable obstacles’ preventing the family life from continuing outside the UK.

The decision

In post-hearing submissions, the Secretary of State maintained that the new Immigration Rules ‘provide a clear basis for considering immigration family and private life cases in compliance with Article 8 of the European Convention on Human Rights’.  The Upper Tribunal rejected this argument.

Following the earlier decision in MF Nigeria [2012] UKUT 00393 (IAC) the Upper Tribunal confirmed that the Immigration Rules, as statements of executive policy, cannot override the legal duty imposed by statute (for example, the duty imposed by section 6 of the Human Rights Act 1998 for a public authority to act compatibly with Convention rights), or the existing case law of the higher courts and the Upper Tribunal itself.

Whilst the Tribunal concluded that Appendix FM does not adequately reflect the obligations placed on Immigration Judges under Article 8 and the established case law, the Immigration Rules will still be taken into account during the Judge’s proportionality assessment under Article 8 (paragraphs 42 and 43). Here the judge will be considering whether the interference with family life is a proportionate means of achieving the legitimate aim in question . The weight to be attached to the reasons for rejecting the human rights claim will depend on the particular facts and the extent to which the rules themselves reflect the criteria for Article 8 in the established case law of the higher courts.  The Tribunal stated at paragraph 52:

‘[W]e 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…’

Paragraph EX.1 introduced a human rights exception within Appendix FM of the Immigration Rules.  In order for paragraph EX.1 to apply, the claimant must show that there are ‘insurmountable obstacles’ to the family life from continuing outside the UK, despite the House of Lords declaring that test to be incorrect; Huang [2007] UKHL 11, EB Kosovo [2008] UKHL 41. 

The Upper Tribunal agreed that there is no test of insurmountable obstacles under Article 8 of the ECHR. Although an application may be refused by the Secretary of State for not meeting the insurmountable obstacles test, this does not mean that the outcome under Article 8 will be the same:

‘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’ (paragraph 53).

The Upper Tribunal continued at paragraphs 56 and 67:

‘It is thus the degree of difficulty the couple face rather than the ‘surmountability’ of the obstacle that is the focus of judicial assessment but again as a factor rather than a test’.

‘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’.

The Upper Tribunal’s judgment is a welcome one since it will assist arguments to be formulated that, in their current form, the Immigration Rules do not adequately reflect the Secretary of State’s obligations under Article 8 of the ECHR.

On a separate but equally important point, the Secretary of State confirmed that EU law prevents a State requiring an EU citizen from leaving the UK in order to maintain family life from abroad. This is consistent with the earlier concession made by the Secretary of State in Sanade and others (British children – Zambrano – Dereci) [2012] UKUT 00048 (IAC). However, the Secretary of State argued that these circumstances are to be distinguished from a case where an independent adult can choose between continued residence in the UK or cohabitation abroad.

It is important to note that the facts of Izuazu are materially different from those in Sanade; Izuazu’s husband held dual British and Nigerian nationality and he had maintained ties with his home country. In those circumstances the Upper Tribunal concluded that although there would be some hardship in relocating to Nigeria, there was nothing to suggest that he would be unable to follow his wife there. The Tribunal stated at paragraph 83:

‘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’.

Whilst Sanade remains good law, it will be necessary in both applications to UKBA and on appeal to establish that in addition to British citizenship it will still be unreasonable for the British citizen to travel outside the EU to continue the family life. Lack of ties with the proposed destination of return will need to be established and advanced in order to establish that it is unreasonable for the British (or EU) citizen to leave the UK.

For further advice on the implications of the judgment in Izuazu (Article 8 – new rules) [2013] UKUT 00045 (IAC) and how it may affect your case then please contact our immigration barristers in Covent Garden, London on 0203 617 9173 or email info@richmondchambers.com.