MB & Anor v The Secretary of State for the Home Department

An immigration judge is not required to determine an European Convention on Human Rights Article 8 claim which the appellant has not advanced, supported with evidence, or made sufficiently obvious. In assessing whether an unraised point was Robinson obvious, the tribunal may consider whether any material basis for the claim appeared before the first-instance judge.

Where Article 8 is properly in issue, the proportionality balance between effective immigration control and disruption to private or family life may take account of the nature and degree of non-compliance with the Immigration Rules. That possible near-miss consideration does not create a free-standing Article 8 claim.

The appellant, a student, had been refused further leave because he did not meet two eligibility requirements of the Immigration Rules. Before the First-tier Tribunal, his appeal form and grounds challenged only the Rules. They did not advance a Convention claim, and no evidence of personal circumstances was before Immigration Judge Morris.

Permission to appeal was granted solely on the contention that the judge had failed to consider Article 8. Before the Upper Tribunal, the appellant relied on a later witness statement and submitted that Article 8 was engaged by the harshness of the Rules. The central issue was whether the first-instance judge had made an error of law by failing to determine an unadvanced, allegedly Robinson-obvious Article 8 claim.

1. Appeal dismissed. The First-tier Tribunal made no error of law. The appellant had been clearly warned to state all reasons for remaining in the United Kingdom, including any Convention ground, but his appeal documentation advanced only Immigration Rules issues. Immigration Judge Morris could not be criticised for failing to decide an Article 8 claim that had never been made.

2. The later witness statement could not establish an error in the first-instance decision. It was not before the Immigration Judge, so there was no evidential basis on which she could have assessed an Article 8 claim.

3. The Tribunal considered whether Article 8 nevertheless arose as a Robinson-obvious point. It held that no such claim was sufficiently apparent to require determination without having been pleaded. The Tribunal therefore did not need to decide the scope of the point suggested by Pankina and Others [2010] EWCA Civ 719.

4. It observed, without deciding the issue, that where an Article 8 claim is properly before the tribunal, proportionality may depend in part on how serious and what kind of non-compliance with the Immigration Rules has occurred. That observation could not assist this appellant because no Article 8 case had been advanced or was obvious on the material before the Immigration Judge.

• Upper Tribunal (Immigration and Asylum Chamber): The appeal was dismissed. The Tribunal upheld Immigration Judge Morris’s decision because no Article 8 claim had been advanced or was Robinson obvious.

• First-tier Tribunal: Immigration Judge Morris found an unassailable breach of the Immigration Rules. No citation is stated for that decision.