Singh and Khalid v Secretary of State for the Home Department (2015) EWCA Civ 74
SUMMARY
On 12 February 2015, the Court of Appeal handed down an important judgement on the correct approach to Article 8 Private and Family life applications, which were decided after the major Immigration rule changes of 9th July 2012.
In those major rule changes, which took effect on 9th July 2012, set out in HC194 (a Statement of Changes to the Immigration rules) the Government decided to set out how the balancing exercise should be carried out when deciding an Article 8 claim, by introducing their version of how this should be done.
First of all they added paragrapgh 276ADE relating to private life, increasing the long term residence requirements for unlawful presence in the UK from 14 to 20 years, and they also introduced Appendix FM for the partners of British citizens and those with permanent stay in the UK. The Government said that their intention was to codify the caselaw from Strasbourg on Article 8 and set out how Article 8 should be approached.
In essence, prior to 9th July 2012 Article 8 claims were decided outside of the Immigration rules, and reliance was placed on caselaw, ie judge made decisions. After 9th July 2012 Article 8 claims were decided by the Secretary of State according to the criteria set out in the Immigration rules.
An issue arose as to whether the new rules or the old rules should be applied to applications made before 9th July 2012 but decided after that date.
In the previous cases of Edgehill v Secretary of State for the Home Department (2014) EWCA Civ 402 Imm AR 883 and Haleemudeen v Secretary of State for the Home Department (2014) EWCA Civ 558 (2014) Imm AR 1087, conflicting answers were given.
CONCLUSION
In this case, the Court of Appeal examined that conflict. It found that the latter case was wrong, and confirmed that, for cases decided between 9th July 2012 and 5 September 2012, the old rules applied as regards Article 8, but for those decided after 5th September 2012 the new rules applied.
The court also reviewed the 2 stage test set out in the earlier case of Nagre. The 2 stage test is where Article 8 is firstly considered, both by the Sevretary of State and the Court, within the Immigration rules, and then outside of the Immigration rules by considering the caselaw.
The court concluded that the second stage, can, ‘in an appropriate case, be satisfied by the decision maker concluding that any family or private life issues riased by the claim have already been addressed in the first stage – in which case obviously there is no need to go through it all again.’
The Judge agreed with a statement in Nagre ‘that that is a conclusion that must be reached by a matter of concious decision in any given case and cannot simply be assumed.’
WHAT DOES THIS MEAN FOR YOU ?
Firstly, that where an application made relying on Article 8 family life was made before 9th July 2012 but decided after 5th September 2012, the applications would be decided outside of the rules and rely on Human Rights caselaw to make a decision, but after that date, would use the criteria set out for Article 8 within the Immigration rules.
It still however has to be demonstrated by the Secretary of State that they have, one way or another, considered the matter outside of the rules if the application does not meet the requirements of the rules themselves.
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