Muhammad Nasim & Ors v The Secretary of State for the Home Department

Article 8 of the ECHR is not a general power to relax the Immigration Rules. A former student’s wish to obtain post-study work, employment experience or an economic advantage usually lies at the outer edge of protected private life. Such interests are ordinarily capable of being replicated in the person’s country of origin.

A failure narrowly to meet an Immigration Rule does not itself add substance to an otherwise weak Article 8 claim. Lawful conduct, self-sufficiency and payment of course fees do not strengthen the right relied on. They merely prevent reliance on additional public-interest grounds for removal.

Where Article 8 is engaged, the public interest in a firm and coherent system of immigration control will normally make removal proportionate in cases of this kind.

The appellants were former students whose applications to vary leave under the former Tier 1 (Post-Study Work) route had been refused. Following the Upper Tribunal’s earlier determination, Nasim and Others (Raju: reasons not to follow?) [2013] UKUT 00610 (IAC), the Tribunal reconvened to decide their remaining Article 8 claims.

They contended that removal would interfere with private life because they had studied, worked or formed social ties in the United Kingdom, and because they expected two years of post-study work. One family also relied on the best interests and medical needs of their children. The common issue was whether hypothetical removal following refusal to vary leave would breach Article 8.

1. The remaining appeals were dismissed on human-rights grounds. Mr Nasim’s appeal was withdrawn with the Tribunal’s consent under rule 17(2). The Tribunal held that, save for the family case which it considered separately, the asserted consequences did not attain the gravity required to engage Article 8(1). It also decided every case on the alternative basis that removal was proportionate.

2. Patel and Others v Secretary of State for the Home Department [2013] UKSC 72 required renewed attention to the limited purpose of Article 8. The provision protects private and family life, not education or a general wish to complete post-study work in the United Kingdom. Employment, studies, friendships and social ties formed during temporary student leave are normally transposable to the country of origin. The public interest in coherent immigration control therefore decisively outweighed these weak claims.

3. A near miss under the Immigration Rules is relevant only where it identifies an underlying, core Article 8 interest, such as family values reflected in a rule. It cannot turn an otherwise meritless human-rights claim into a successful one. Article 8 also does not require the Secretary of State to preserve the Rules in force when a person entered the United Kingdom, or to create transitional protection for a closed class of disappointed students.

4. Not committing offences, avoiding public funds and paying tuition fees did not enhance the appellants’ Article 8 rights. Those matters only meant that the respondent could not invoke additional public-interest considerations beyond the ordinary importance of immigration control.

5. The Tribunal rejected the alleged systemic inconsistency in decision-making. Isolated examples and unsubstantiated assertions did not establish a systemic failure capable of rendering the decisions unlawful or reducing the weight of immigration control.

6. For Mr Mughal and his family, the children’s best interests were a primary consideration but not paramount. Their short residence, the family’s continuing links and resources in Pakistan, and the absence of evidence that education or treatment for deafness could not continue there meant that removal was proportionate. The appeals of all family members were accordingly dismissed.

• Upper Tribunal (Immigration and Asylum Chamber): This determination completed the Article 8 issues reserved in Nasim and Others (Raju: reasons not to follow?) [2013] UKUT 00610 (IAC). The remaining human-rights appeals were dismissed.
• First-tier Tribunal: The appellants had appealed decisions of the Secretary of State refusing to vary their leave to remain. The individual First-tier Tribunal determinations are not separately cited in the judgment.