Case of Bossade (ss117A-D- interrelationship with Rules) (2015) UKUT 415 (IAC)
Summary This case confirms that since Part 5A of the Nationality Immigration and Asylum Act 2002 came into force (ss117A-D) it has not altered the need for a two stage approach to Article 8 family and private life claims.
This means that the court will at the first stage look at Article 8 by reference to the Immigration Rules without looking at part 5A. Part 5A only applies at the second stage when looking at an Article 8 claim outside of the Immigration rules.
In foreign criminal cases this means Part 5A only has effect in the second stage looking at the proportionality of removal. For cases not concerning the removal of foreign criminals, where the rules are not a complete code, it may still be necessary to conduct this second stage outside of the rules.
Part 5A considerations have a limited role as statements of principles that can be used ‘where appropriate’ to inform the meaning of key terms.
What does this mean ? Good question !!! In simple terms, if this is possible, it means that the Government have purported to say within the Immigration rules,what an Article 8 claim entails as regards family and private life. Howevver this has been challenged on numerous occasions in the Immigration Tribunal and Higher Courts and it is established case law that Article 8 within the Immigration rules is not a ‘complete code’ and that the Courts must look in the first stage at the Immigration Rules, and then, when necessary, outside of the Immigration rules.
These statutory Human Rights considerations only come into play at the second stage of the two part test, outside of the Immigration rules, and are only a guide, NOT mandatory considerations.
Paragraph 398 of the Immigration rules relates to foreign criminals, where it is claimed that a person’s deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, the Secretary of State in assessing the claim considers if paras 399 or 399A apply and if they do not, the public interest in deportation is only outweighed by other factors where there are very compelling circumstances OTHER than those set out below
– the person has been lawfully resident in the UK for most of his life,
– he is socially and culturally integrated in the UK and
– there would be very significant obstacles to his integration into the country into which it is proposed he be deported.
Part 5A is headed ‘Article 8 of the ECHR: Public Interest considerations’
This part applies where a court or tribunal is required to determine whether a decision made under the Immigration Act
(a) breaches a person’s righht to respect for private and family life under Article 8 and
(b) as a result, would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard –
in all cases to the considerations listed in section 117B and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C
(3) In subsection (2), ‘ the public interest’ question means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).
177B Article 8: public interest considerations applicable in all cases
in short, this part states it is in the public interest that people who seek to remain in the UK are able to speak english and be financially independent, and that little weight should be given to a relationship established when a person is in the UK unlawfully or their immigration status is precarious.
Where a person is not liable to deportation, the public interest does not require removal where a person has a parental relationship with a qualifying child and it is not reasonable to expect the child to leave the UK.
117C Article 8 additional considerations in cases involving foreign criminals
as above, this is where a person has been lawfully resident in the UK for most of his life, socially and culturally integrated in the UK, and significant obstacles to integration in the country to which he would be deported.
Phew. Got there in the end !
What does this mean for you ? If you are relying on an Article 8 family and private life claim, the Court has regard to Part 5A considerations at the second stage of the two part test for looking at Article 8 first inside, and then outside of the Immigration rules.
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