MF (Nigeria) v. Secretary of State for the Home Department [2013] EWCA Civ 1192 (CA)

Do the Immigration Rules provide a complete code when considering whether the deportation of a foreign national criminal is contrary to Article 8 ECHR? Yes held the Court of Appeal in MF (Nigeria) v SSHD [2013] EWCA Civ 1192, promulgated on 8/10/13.

The Secretary of State advanced a different case before the Court than had been argued in the Upper Tribunal, as to the significance of the new Article 8 specific Immigration Rules. It was submitted, and accepted by the Court, that the phrase "exceptional circumstances" in para. 398 of the rules encompassed the range of factors relevant to the question of proportionality under Article 8 (2) ECHR and was not a reinstatement of the test rejected by the House of Lords (as they were then known) in Huang v SSHD [2007] UKHL 11.

In giving the judgment of the Court, the Master of the Rolls held that the general rule is that in the case of a foreign prisoner to whom paras. 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. Those reasons are the "exceptional circumstances" and will be the product of an application of the proportionality test required by the Strasbourg jurisprudence.

Where paras. 399 and 399A do apply, the Court observed that this may involve questions of evaluation as well as hard-edged fact, such as whether it would be 'reasonable' to expect a child to leave the UK or whether there are 'insurmountable obstacles' to family life with a partner continuing outside the UK. In relation to the latter, the Court expressed the view that if the approach under the rules to the meaning of 'insurmountable obstacles', was confined to those obstacles which it is literally impossible to surmount, that would be contrary to Article 8 ECHR.