New Home Office Article 8 policy

By On 18 September 2008 · 4 Comments · In Cases, Policy

Shocker: the Home Office appear to have accepted what the Lords say in Chikwamba (see previous posts on the House of Lords cases themselves and then on the secret policies if coming to this fresh). The policy just published and now to be applied in all relevant Article 8 cases is a pretty faithful reflection of what the Lords said in that case: that only in a small number of cases would it be proportionate to expect an individual to return home to apply for entry clearance rather than having their claim determined in the UK. It doesn’t mean they’ll win their cases, but it does force the Home Office and courts to decide the issues here and now rather than fobbing off the claimant by saying they should go back home and apply for entry clearance.

Luckily for my sense of moral outrage, normality returns in the policy on the EB  (Kosovo) case. For this one, the Home Office invent a spurious requirement that delay is only going to assist an applicant where he or she had an expectation of being treated differently if the case had been decided earlier or was treated inconsistently to others who applied at the same time.

That is very clearly NOT what the Lords say and the Home Office appears to be making a mistake a first year law student would not: that the facts of a case are binding, rather than legal principles. My lecturers might be surprised, but even I can recall the difference between obiter dicta and ratio decidendi, the foundations of the common law system of precedent. Anyway, both policies are badly worded and ambiguous so there is scope for them to be interpreted in different ways. Almost certainly to the detriment of immigrants, if business is as usual.

There is almost nothing in the policy on the effect of Beoku-Betts, other than the rather surprising suggestion that the Home Office was already complying with the judgment anyway as the rights of family members were considered at the point of removal. This is so plainly untrue it is just a bit embarassing.

What will the AIT make of this? Given that the House of Lords judgments reverse a long and rather tarnished line of tribunal cases, they will probably be less than pleased that the Home Office have caved in on Chikwamba. It rather ties the Tribunal’s hands, although some senior immigration judges are capable of Houdini-like feats in such situations. It is quite probable that the tribunal will adopt a similar line to the Home Office on EB (Kosovo), however, as might the Court of Appeal if the sour comments in TG (Central African Republic) are anything to go by.

 
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4 Responses to New Home Office Article 8 policy

  1. alisha says:
    18 September 2008 at 5:13 pm

    dear free movement

    correct me if i am wrong about EB (Kosovo). it looks like from the HO have agreed that delay is revelent in three ways and might work in the applicant,s favour. have a look at the extracts below from the manual.

    What effect does a delay in consideration have on the proportionality
    test?
    In the case of EB Kosovo v The Secretary of State for the Home Department [2008]
    the House of Lords considered what bearing delay in decision making has on a
    person’s rights under Article 8. The Lords identified three ways in which delay would
    work in the applicant’s favour;
    1. By allowing the individual to develop closer ties to the UK in terms of family
    and private life;
    2. Where the individual entered into a relationship or established private life after
    arrival in the UK, by reducing the significance of the fact that the individual
    and any partner knew the individual had no right to remain; and
    Border Force Operations Manual
    Appeals Article 8 HRA Representations
    Border Force Operations Manual 4
    Back to Top
    3. By reducing the force of the argument that removal is necessary in the
    interests of upholding immigration control if the delay is shown to be a result
    of an inconsistency in outcomes which will have a bearing on the
    proportionality of removal or requiring an applicant to apply out of country.
    This point, on consistency of treatment between one applicant and another, is
    one of fairness. The House of Lords saw it as particularly significant that EB’s
    cousin, with whom he had arrived in the UK and who claimed asylum at the
    same time on the basis of the same facts, had his claim dealt with without
    delay and was granted ELR (under the policy then in force) (and later ILR) as
    a result. Delay in decision making may therefore make removal
    disproportionate if the applicant:
    • can demonstrate that as a result they were treated inconsistently with
    other applicants in similar circumstances or
    • had an expectation that their case would have been handled
    differently had it been considered earlier (e.g. that they would have
    benefited from policies in place at that time).

  2. alisha says:
    19 September 2008 at 10:38 am

    dear free movement

    i had to read that manual again. you are right , the HO are tryin to interprete EB (Kosovo) the wrong way but i am sure the immigrants might argue in Court based on what the House of Lords have said.

  3. Susannah says:
    23 September 2008 at 11:12 am

    Take that BIA!

  4. Simon Canter says:
    2 October 2009 at 3:02 pm

    But see also Lord Justice Sullivan’s not so sour judgment in MA (Pakistan) [2009] EWCA Civ 953 which has recently been reported overturning a Houdini-style decision from IJ Rowlands.

    MA had been a student in the UK and had married a British citizen during his time here. He fell out with his father in Pakistan to the extent that he was concerned for his safety in his home country. His leave as a student was cancelled by the Home Office after he dropped out of college and started working. He appealed against this decision on the basis that he had developed a family life in the UK with his wife.

    Before the AIT the IJ had dismissed the appeal despite finding that if MA returned to Pakistan and made a 281 (spouse) application he would be likely to be granted Entry Clearance. The IJ made this decision despite citing the House of Lords’ decision in Chikwamba [2008] UKHL 40 in his determination!

    Sullivan LJ overturned the decision, noting that the general approach recommended in Chikwamba [of not insisting on return to apply for entry clearance] was not confined to cases involving children and “also applies to family cases more generally” (paragraph 7 of the judgment). This comment will be helpful if the Home Office attempt to enforce return to re-apply for entry clearance on the basis that there are no children involved.

    The judgment also makes it clear that the lingering “insurmountable obstacles” test ought not to be applied (see EB (Kosovo) UKHL 41 and VW (Uganda) [2009] EWCA 5).