MF v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Where Article 8-specific Immigration Rules apply, a tribunal must first decide whether their mandatory requirements, and any relevant discretion, are satisfied. That remains an application of the Rules, whose references to Article 8 do not alter their legal character.

A negative decision under the Rules does not, however, end the tribunal’s statutory duty to decide whether removal or deportation would breach Convention rights. The ordinary two-stage approach therefore remains necessary in most cases. The Rules do not replace the binding domestic approach to Article 8 proportionality, including the Maslov criteria in deportation cases. Their more detailed expression of the Secretary of State’s view of the public interest must nevertheless inform the second-stage balancing exercise.

The appellant, a Nigerian national and foreign criminal, appealed against a deportation order made under the automatic-deportation regime. The First-tier Tribunal had dismissed his appeal. An earlier Upper Tribunal decision set aside its Article 8 conclusions while preserving its factual findings.

The appellant had an 18-month sentence, a poor immigration history, a British-citizen wife and a 16-year-old British stepdaughter, F. The respondent accepted that it would not be reasonable for the wife and F to relocate to Nigeria. The appeal raised both the effect of the Immigration Rules introduced in July 2012 and whether deportation was proportionate under Article 8.

1. Appeal allowed on Article 8 grounds. The First-tier Tribunal had erred in law. On remaking the decision, the Tribunal held that deportation would be disproportionate.

2. The July 2012 Article 8-specific Immigration Rules had to be applied wherever they were applicable. Their mandatory requirements, including requirements expressed as exceptional circumstances or insurmountable obstacles, were legal requirements under the Rules. Any discretion conferred by the Rules was a discretion to grant leave only where the mandatory requirements were met.

3. The Rules could not constitute a complete code for Article 8. Primary legislation, including section 6 of the Human Rights Act 1998 and the statutory human-rights grounds of appeal, required the Tribunal independently to decide Convention compliance. Thus, even after an appellant fails under the Rules, the Tribunal must conduct the Article 8 assessment required by binding domestic authority. In a family-life case, an insurmountable-obstacles criterion under the Rules cannot displace the domestic Article 8 question whether family life can reasonably continue abroad.

4. The Tribunal was not persuaded that paragraph A362 of the new Rules governed an appeal from a deportation decision made before the Rule came into force. The Rule was directed to the timing of service of a notice or order, not clearly to pending appeals from earlier decisions. In any event, the appellant failed the Rules because he could not establish exceptional circumstances.

5. At the Article 8 stage, the new Rules were relevant evidence of the weight which the Secretary of State attached to deporting foreign criminals. The Tribunal applied the Maslov criteria cumulatively, including criminality, immigration history, rehabilitation, family ties, the child’s best interests and the consequences of separation. The appellant’s offending and immigration history strongly favoured deportation. But F’s best interests were a primary consideration. She regarded the appellant as her de facto father, had no meaningful contact with her biological father, and would suffer from his removal while also facing pressure arising from her grandparents’ care needs. Since relocation was accepted to be unreasonable, the balance favoured the appellant.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal on Article 8 grounds and remade the decision after setting aside the First-tier Tribunal’s Article 8 determination.
• First-tier Tribunal: Dismissed the appeal against the deportation decision. Its Article 8 assessment was set aside for error of law; factual findings were preserved.