In July 2012, the United Kingdom introduced new immigration rules which seek to clarify the requirements for anyone seeking to rely on Article 8, the right to private and family life, of the European Convention on Human Rights (ECHR).
The Explanatory Memorandum for the new rules says that “The rules will set proportionate requirements that reflect the Government’s and Parliament’s view of how individuals’ Article 8 rights should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis. Outside exceptional cases, it will be proportionate under Article 8 for an applicant who fails to meet the requirements of the rules to be removed from the UK”.
The rules were recently challenged in a case taken by an illegal entrant from Nigeria who was convicted of handling stolen goods in 2009. The applicant was married in 2009 and his wife and her daughter were British citizens. The appellant claimed that it would be impossible for his wife and daughter to relocate to Nigeria and therefore his Article 8 rights were being violated. The Upper Tribunal agreed that it would not be proportionate to deport the appellant.
The UK Upper Tribunal identified the crux of the new rules to include three elements. Firstly, there is a presumption that the person’s deportation is conducive to the public good. Secondly, the rules identify limited categories of person who may be entitled to limited leave in the cases where they meet strict requirements. Thirdly, the rules state that leave outside of these requirements will only be granted in exceptional circumstances. The rules enhance the importance the Secretary of State attaches to the public interest in the deportation of those with a criminal record.
The new rules set out mandatory requirements that must be met if an appellant wishes to rely on Article 8.The Upper Tribunal noted that these requirements do not cover cases in which the appellant seeks to remain in the UK on family grounds. In addition to the mandatory requirements, the rules provide for leave to be granted in “exceptional circumstances”. The Upper Tribunal observes that the rules offer very little in the way of a definition of “exceptional circumstances”. It is for these reasons that the Tribunal cannot interpret the new rules as a complete codification for Article 8 claims and calls for more clarity. In making this call the Upper Tribunal stresses that it is not calling into question the legitimacy of the rules, merely noting that the rules are not fully comprehensive.
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