LPC

Immigration control can take place in the following locations:

• Overseas before entry to the UK: applications for entry clearance (which will act as leave to enter in most cases) to Entry Clearance Officers;
• At ports on entry to the UK: applications for entry to the United Kingdom to Immigration Officers;
• Within the UK after entry: applications to remain in the UK to immigration caseworkers of the UKVI.

Entry clearance

Entry clearance is immigration control which takes place prior to a person arriving in the UK. Applications are made to entry clearance offices at British Embassies or High Commissions abroad, or to the UKVI via an online application process.

An entry clearance document, often referred to as a visa, can take the form of a sticker (known as a vignette) in the holder’s passport or travel document. For some types of visa, the UKVI now also issue a Biometric Residence Permit – a card – once the person arrived in the UK.

For some countries, the UK always requires entry clearance before travel, for all types of visa. A list of those countries (‘visa national’ countries) is appended to the Immigration Rules (Appendix V, Appendix 2).

For other countries (‘non-visa national’ countries – any non-EEA countries not listed in Appendix V, Appendix 2), the UK allows nationals of those countries to travel to the UK for short periods without seeking entry clearance before travel. They still require leave to enter, but they can apply for that at the port when they arrive.

For anyone applying to enter the UK for a period of more than six months, they must always seek entry clearance before travelling.

What is the procedure for entry clearance?

In dealing with an application for entry clearance for a particular purpose, the entry clearance officer (‘ECO’) or UKVI will apply the immigration rules. The entry clearance procedure requires a form of application to be submitted, together with the appropriate fee, and any supporting documentation. Many of the busiest entry clearance posts now employ an agent or commercial agent to accept and process applications before forwarding them to the entry clearance post for decision.

The application is usually made on-line to a Visa Application Centre (‘VAC’), thereafter the applicant is given an appointment to attend the VAC. At this appointment the applicant must submit the required documentation, pay the application fee and Immigration Health Service Charge (where applicable), and provide biometric data i.e. finger prints and photographs etc. (s.126 of the Nationality Immigration and Asylum Act 2002 requires the submission of biometric information as part of a valid immigration application). Section 14 of the IA 2014 provides for the use and retention of biometric information, but only if it is necessary for immigration and nationality purposes. Biometric data can also be retained for a broad range of non-immigration purposes such as the prevention of crime, protection of nationality security etc. Concerns have been raised about these provisions and the need to ensure that agencies carrying out immigration functions comply with data protection regulation. The applicant may be interviewed, but this is less common.

In some entry clearance posts the practice is for the applicant to attend the VAC for an appointment, thereafter they must send their documents to the UKVI in Sheffield who will make a decision.

What happens if the application is refused?

If the ECO is minded to refuse the application may be reviewed by an Entry Clearance Manager. If the decision is upheld the applicant is informed as to whether they have a right of appeal against the decision.

Can a person travel once they have entry clearance?

Yes – generally entry clearance also operates as leave to enter the UK (Immigration and Asylum Act 1999 and the Immigration (Leave to Enter and Remain) Order 2000), and therefore the person can finalise their travel arrangements. The ECO will make this clear.

Where entry clearance has been granted, a person should be subject to fewer checks on arrival in the UK. However, on arrival an Immigration Officer may examine the grant of entry clearance, and has the power to cancel it if, for example, there has been a change of circumstances or it is shown that the leave was obtained on the basis of false information. See IA 1971, Schedule 2, paragraph 2A.

Leave to enter the United Kingdom

Immigration control takes place at all ports in the UK and is administered by the UKVI. The Immigration Service consists of Immigration Officers (‘IOs’) Chief Immigration Officers (‘CIOs’) and inspectors appointed by the Home Secretary. Leave to enter may be granted abroad (as above) or on entry to those ¬persons not requiring a visa before travelling (i.e. non-visa nationals), for certain categories of 6 months or less. Persons without entry clearance will be required to submit to a more detailed examination by an immigration officer at the port, who will seek to ascertain whether they satisfy the requirements of the immigration rules for the category in which they are seeking to enter. The IO will do this by means of questioning and examination of the applicant’s documents.

What happens if the application is refused?

Whether a person has a right of appeal against refusal will depend on the basis on which they were seeking to enter. Those arriving without entry clearance for temporary purposes have very limited appeal rights. In such circumstances the only in-country remedy may be judicial review.

Leave to remain

Applications for further leave to remain are dealt with by the UKVI and may be granted in accordance with the immigration rules or on a discretionary basis, outside the rules. Applications may be for an ‘extension of leave’ for a further period in the same category (e.g. a student applies for a further period of leave to complete a course), or to vary leave to an alternative category, known as ‘switching’.

What is the procedure for applying for leave to remain?

Most applications to extend/vary leave to the UKVI must be made on prescribed application forms, which are available from the UKVI and can be downloaded from the website. There is a prescribed fee for most applications and since April 2015 a NHS surcharge may be payable.

It is anticipated by the UKVI that applications to vary/extend leave will be made while the applicant’s existing leave to remain is still current. Where an application is made in this way, an applicant may remain in the UK lawfully while the application is being considered (even though the previous leave may expire before the application is decided) and the conditions attached to the original leave remain in force until a decision on the application is made (see IA 1971 s. 3C). If an application is made after an applicant’s leave to remain has expired, the applicant will be an overstayer at the time of the application and therefore potentially subject to immigration enforcement action by the Immigration Service.

What happens if the application is refused?

A client may have a right of appeal to the Tribunal. This will depend on the type of application made and it is likely that a right of appeal will only exist if asylum and/or human rights issues are raised.

Types of application and powers of the immigration authorities

A person who requires leave to enter or remain must make an application to the appropriate body depending on where they are, their circumstances and the purpose of their application. The immigration authorities (abroad, on entry or after entry) have powers to grant or refuse leave to enter or remain and the UKVI can “curtail” existing leave in certain circumstances. The immigration rules set out the criteria for most applications and there are also general grounds in the immigration rules on which applications can be refused. In some circumstances the application will be outside the rules and based on asylum law, human rights law or at the discretion of the UKVI.

Work by a representative on an immigration or asylum matter can be funded as follows:

• privately by the client;
• publicly funded where the client is eligible; or
• in some cases organisations may provide pro bono advice.

Public Funding

There have been a number of significant changes to publically funded work following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’), which came into force on 1 April 2013. The agency which administered publically funded work was previously called the Legal Services Commission (‘LSC’). The LSC is now called the Legal Aid Agency (‘LAA’). Further in the context of immigration work, public funding is now only essentially available in cases involving asylum, detention, victims of trafficking, victims of domestic violence and forced marriage, protection of children and the Special Immigration and Appeals Commission.

As a result of LASPO the majority of immigration applications are no longer automatically eligible for public funding: they are an ‘excluded category’. LASPO includes a provision which enables the LAA to grant some funding to excluded category cases: this is known as ‘exceptional funding’.

The Lord Chancellor’s Guidance on when exceptional funding should be granted sets a high threshold and uses words like ‘rare case’ or ‘risk of breach substantial’. Unsurprisingly, of grants of exceptional funding have been rare: around 1% of exceptional funding applications in immigration cases have been granted.

A number of challenges were brought against the LAA refusal to grant exceptional funding which led to the judgement R (On the application of Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622. The court held that the guidance being issued by the LAA to make decisions on whether to grant exceptional funding was unlawful as it was effectively too stringent.

A further systemic challenge was brought and resulted in IS (by his litigation friend the Official Solicitor) v Director of Legal Aid Casework and the Lord Chancellor [2015] EWHC 1965 (Admin)) (‘IS’). This case established that the Exceptional Case Funding scheme was operating unlawfully as it gave rise to an unacceptable risk that an individual would not obtain funding where a failure to do so would breach her rights under the European Convention on Human Rights. IS was overturned in the Court of Appeal in Director of Legal Aid Casework and another v IS [2016] EWCA Civ 464. In what many consider an unsatisfactory judgement, the Court of Appeal did find that parts of the scheme are badly operated, but not quite bad enough to be unlawful. The decision is being appealed to the Supreme Court.

Publically funded work can only be carried out by law firms/organisations which have been awarded a LAA contract in the relevant area of law, e.g. for asylum law. Further, the LAA will only provide payment for work carried out by legal representatives who have been accredited under the Immigration and Asylum Accreditation Scheme (‘IAAS’).

The Legal Help scheme

This scheme enables public funding for work undertaken save for representation at an appeal hearing. The Legal Help Form (CW1) must be fully completed with the client and the client must sign it. The scheme is subject to a means and merits test. The merits tests is known as the “Sufficient Benefit test”; you would need to ask yourself ‘would a privately paying client pay in these circumstances?’. The threshold is relatively low. These tests must be assessed by the representative (who must be accredited to carry out such work). The scheme is then subject to financial limits according to the type of case. Most case will operate under the graduated fixed fee scheme (‘GFS’), which essentially limits the amount of profits costs a firm can claim, to a fixed amount.

Controlled Legal Representation

Controlled Legal Representation (CW2 form) is potentially available for representation at asylum appeals and bail applications in the Immigration and Asylum Chamber. It is subject to a merits test based on the prospects of success and a means test. In relation to the ‘prospects of success test’ the representative would need to be satisfied that there were good prospects of success, so around a 50% chance of being successful. In some circumstances there are modifications to the merits test, for example the test is modified when the client is a child.

Costs and client care

Solicitors must observe professional conduct rules in respect of costs and client care. Chapter 1 of the Code of Conduct requires accurate information to be given regarding costs (including explanations of terms such as disbursements and the application of VAT), advance costs information to be provided and clients to be kept fully informed throughout the case regarding costs. Eligibility for legal aid should be discussed and the implications of the appropriate scheme explained. In contentious matters clients should be informed of costs implications.

Who needs leave (permission) to enter or remain in the UK?

Generally any person without a ‘right of abode’ (mainly British citizens), will require leave (i.e. permission) to enter the UK (s. 3 IA 1971).

People with right of abode can reside freely in the UK, and can enter without restriction. They may, however, be required to demonstrate that they actually have the right of abode – e.g. by producing a valid British passport or other evidence of nationality.

There are also a few special groups who are exempt from immigration control, including diplomats.

What is leave to enter or remain?

Leave can be

• Limited in duration (e.g. six months leave to enter the UK as a visitor); or 
• Indefinite, i.e. the person may remain in the United Kingdom for an indefinite period without conditions.

Where the UKVI grants leave for a limited period, then it may also impose conditions to the leave: e.g. a prohibition or restriction on working, or a requirement not to have recourse to public funds.

Indefinite Leave to Remain (‘ILR’) (Or Indefinite Leave to Enter (‘ILE’) if granted before someone enters the UK) carries no time limit, nor any other condition. However, the holder remains subject to some immigration control and may be subject to deportation action in certain circumstances.

It is also possible for ILE/ILR to lapse if the holder remains absent from the UK for a continuous period of 2 years.

The Home Secretary has the power to revoke ILE/ILR in some limited situations – most obviously in light of serious criminal convictions, of if it transpires that the leave has been obtained by fraud.

ILE/ILR is sometimes also referred to as settlement, settled status or permanent residence.

The Home Office and the Secretary of State for the Home Department

Under the IA 1971, the SSHD has overall responsibility for the administration of immigration control. The SSHD normally, unsurprisingly, acts through his/her officials, who make almost all actual decisions (see below). However, there are certain decisions which require the SSHD to act in person (e.g. the exclusion of persons from the UK on the grounds of national security).

UK Visas and Immigration

The UKVI is responsible for managing the UK’s borders and controlling migration by enforcing immigration and customs regulations. It also considers applications for permission to enter or stay in the UK, citizenship and asylum.

UKVI officials make decisions on behalf of the SSHD in respect of people already in the UK, including:

• People who have already entered the UK and have been given leave to enter or remain, and are seeking to extend or change the basis of their stay;
• People who have entered illegally, and wish to seek permission to stay (for example, on asylum grounds);
• People who have overstayed a previous grant of leave, and now wish to regularise their status;
• People who are subject to detention, and people seeking release from detention (this is also dealt with by immigration officers – see below);
• People who are subject to administrative removal from the UK (because they have not been granted leave, or established a right to be in the UK);
• People who are subject to deportation on the basis of criminal behaviour.

The Agency is divided into a number of different departments according to the type of application or status being dealt with. The UKVI has its headquarters in Croydon, and regional offices in Belfast, Birmingham, Cardiff, Glasgow, Sheffield, Solihull and Liverpool.

Immigration Officers

Immigration officials (immigration officers and chief immigration officers) are based at ports and other designated offices. They make decisions in respect of entry to the UK, and are concerned with enforcement of immigration control, detention and release. Local enforcement offices and enforcement sections at ports are primarily concerned with enforcement action against those who are treated as illegal entrants, people subject to administrative removal or deportation and asylum claimants who have been refused.

There are also prosecution units at ports and some offices staffed by immigration officers with additional powers and training, and police officers who investigate immigration-related criminal offences. Sections of the immigration service are responsible for intelligence gathering and investigation of ‘organised crime’ connected with migration and there is co-operation between various agencies on these issues.

Entry Clearance Offices at British Embassies and High Commissions overseas

Entry Clearance Officers (‘ECOs’) are officers of the UKVI based in British diplomatic posts – Embassies and High Commissions.

A High Commission is essentially a diplomatic post in a Commonwealth country, while an Embassy is a diplomatic post anywhere else. They serve the same functions. Both are sometimes colloquially referred to as Consulates – though properly speaking, a Consulate is the section of a diplomatic post that is directly concerned with the interests of that country’s own citizens in the host country.

ECOs make decisions as to whether a person is permitted to come to the UK. The UK visa operation has offices in 146 locations throughout the world. The UKVI operates an online application system, with the grotesque soubriquet ‘Visa4UK’.

The First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber)

On 15 February 2010, Immigration and Asylum Chambers were established in both tiers of the Unified Tribunals framework created by the Tribunals, Courts and Enforcement Act 2007. The Immigration and Asylum Chambers replace the previously existing Asylum and Immigration Tribunal.

The First-tier Tribunal (Immigration and Asylum Chamber) is an independent Tribunal dealing with appeals against decisions made by the Home Secretary and his /her officials in immigration, asylum and nationality matters.

The Upper Tribunal (Immigration and Asylum Chamber) is a superior court of record dealing with appeals against decisions made by the First-tier Tribunal (Immigration and Asylum Chamber).

From 1 November 2013 most immigration judicial review applications have been dealt with by the Upper Tribunal (they were formerly dealt with by the Administrative Court).

Special Immigration Appeals Commission (‘SIAC’)

SIAC was created by the Special Immigration Appeals Commission Act 1997 to deal with cases in which the SSHD argues issues of national security or other public interest reasons. SIAC deals with appeals against deportation or exclusion on these grounds, as well as decisions to certify persons as international terrorists or decisions to deprive persons of British citizenship status.

What is immigration control?

Immigration control is the system of identifying who can enter the United Kingdom (‘UK’) and on what terms. Different groups of people are subject to different forms of control. For example, people are subject to different criteria according to the reason they want to enter the UK, and the length of time they want to remain. An immigration solicitor will require knowledge of all of these types of control.

The main governmental body responsible for these matters is UK Visas and Immigration Agency (‘UKVI’) (previously called the UK Border Agency – you may find references to that, or even to the older Border and Immigration Agency, in older case law).

Sources of immigration law

An immigration practitioner must be familiar with a wide range of sources of applicable law in this area. It may be useful to break down the areas of work as follows:

• Immigration law: applications to enter and remain in the UK for a variety of purposes, from temporary (e.g. visitors) to permanent (e.g. joining a spouse or partner).
• Nationality law: who is entitled to British citizenship, either by birth or by descent; and who can apply for naturalisation or registration as British citizen.
• Asylum law: applications for refuge from persecution.
• Human rights law: rights under the European Convention on Human Rights (‘ECHR’) and the Human Rights Act 1998 (‘HRA 1998’);

However, particular clients’ cases may involve more than one area, and so a broad knowledge is useful even if one’s practice is predominantly in one area.

Legislation

The main piece of legislation dealing with immigration law is the Immigration Act 1971 (‘IA 1971’). However, the IA 1971 has been substantially amended by subsequent statutes to arrive at the current system of control and appeals and it should therefore be read in the light of these amendments.

British nationality law is set out mainly in the British Nationality Act 1981 (implemented on 1 January 1983). This has since been amended by various provisions, notably the Nationality, Immigration and Asylum Act 2002 (‘NIAA’), Immigration, Asylum and Nationality Act 2006 (‘IANA 2006’) and the Immigration Act 2014 (‘IA 2014’).

Since the implantation of the HRA 1998, human rights have played a significant role in immigration law. A breach of human rights will occur where an authority (such as the UKVI) acts in a way which is unlawful under the HRA (i.e. acts in a way which is incompatible with a Convention (ECHR) right).

The law in relation to appeals is now mainly governed by the NIAA, as amended by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and by the IANA 2006.

The IANA 2006 abolished some rights of appeal – particularly against entry clearance decisions for students and employment categories. These have come into effect gradually in line with the Points Based System.

The Race Relations (Amendment) Act 2000 extends the scope of the Race Relations Act 1976, making it unlawful for public authorities to discriminate on grounds of race or colour or ethnic origin, when carrying out their functions. (Note that discrimination on grounds of nationality or national origin may be allowed in respect of some UKVI functions where specifically authorised at ministerial level. For example, it is possible for immigration authorities to subject persons of certain nationalities to more detailed scrutiny in relation to fingerprints/photographs where specifically authorised at ministerial level (Race Relations (Immigration and Asylum)(Comparison of Fingerprints and Photographs) Authorisation 2006)).

The Immigration Act 2014 (‘IA 2014’) introduces a vast range of substantial changes to UK immigration law, the majority of which either significantly limit rights or simply remove them. Most provisions have been enabled via secondary legislation which at times creates a complex web of legal rules including transitional provisions for certain categories of applicants.

The IA 2014 was quickly followed by the Immigration Act 2016 (‘IA 2016’). The Government stated that the purpose of the IA 2016 is to tackle illegal immigration by making it harder to live and work illegally in the UK. The IA 2016 introduced some significant provisions, including a new offence of illegal working, a new immigration bail regime and a new skills levy for those hiring skilled workers from overseas. The IA 2016 not only made changes to immigration law and practice, but also extended immigration control into other areas such as housing, social welfare and employment. For example it introduced criminal offences for landlords and agents who rent to persons without leave to remain in the UK.

A considerable number of statutory instruments have also been made which provide guidance on procedure such as at appeals e.g. The Tribunal Procedure (First Tier Tribunal) Immigration (Immigration and Asylum Chamber) Rules 2014.

The Immigration Rules

The Secretary of State for the Home Department (‘SSHD’; commonly known as the Home Secretary) is empowered under the IA 1971 (ss1(4) and 3(2)) to make Immigration Rules (the ‘Rules’).

The Rules set out specific and detailed criteria to be satisfied by any person who seeks permission to enter the UK, or to remain in the UK. The current rules, Statement of Changes in Immigration Rules 1994 (HC (House of Commons paper) 395) are consolidated and incorporate a number of amending statements since 1994. The rules are most readily available on the UKVI website.

What is the precise legal status of the immigration rules?

The Rules have a sui generis status. As the power to create them stems from the IA 1971, they appear at first to be secondary legislation. However, they are approved by a different procedure to other secondary legislation. They are, in fact, laid before Parliament; but they are not routinely debated by Parliament. Instead, they remain before Parliament for forty days; if no Member raises anything to debate, they pass automatically – a procedure known as negative resolution.

In Pearson v Immigration Appeal Tribunal [1978] Imm AR 212, the Court of Appeal stated that although the immigration rules are not delegated legislation or rules of law, they are rules of practice laid down for those administering the Act and have the force of law in some immigration appeals and judicial review proceedings.

From the point of view of clients – and, largely, of practitioners – the unusual legal status of the Rules makes very little difference. Whatever the fine detail of the resolution procedure, the consequence is that the Rules contain criteria that must be met to succeed in an application (and in any consequent appeal or judicial review action).

In general, when making decisions, the UKVI will look to the Rules. The UKVI should not act more restrictively than the Rules allow. However, the SSHD does have a residual discretion – stemming from the 1971 Act – to depart from the Rules by acting more generously than the Rules permit.

Advice to clients will often concern whether they fulfil the terms of the Rules (which may sometimes be a matter of interpretation).

Where it is alleged that the UKVI has failed to follow the Rules, a right of appeal may exist; or there may be a possibility of judicial review action.

The Rules are subject to frequent amendment, and practitioners should make sure they have the most up to date version available.

Concessions, policies and practices outside the Immigration rules

There are some concessions and policies operated by the UKVI in its discretion, outside the Rules. For example, there is a concession for visitors who wish to enter or remain to care for a sick relative. Some policies and concessions are operated on a time-limited basis, while others are ongoing.

In situations covered neither by the Rules, nor by existing policy or concession, the SSHD (and his/her officers) may make a decision on the particular facts of a case outside the immigration rules on a discretionary basis.

Some of the practices used by the UKVI officials in deciding cases can be ascertained from the internal guidance to staff, some of which is available on the UKVI website. This guidance is extremely useful to practitioners and should be regularly referred to when assisting clients. It includes Immigration Directorate Instructions (‘IDIs’), Entry Clearance Guidance (‘ECGs’) and Asylum Policy Instructions (‘APIs’).

Decisions of the courts

Case law has been important in the development and interpretation of immigration and asylum law. Immigration cases have in recent years formed the largest single category of applications for judicial review. These, and other cases reaching higher courts by way of appeal, have generated some important principles.

1951 UN Convention relating to the Status of Refugees

The Convention, to which the UK is a party, provides the broad definition of a refugee. Domestic law requires that decisions taken by the immigration authorities are not contrary to the UK’s obligations under the Convention.

European Convention on Human Rights

Articles of the ECHR had played a role in immigration and asylum cases for some years; but the implementation of the HRA 1998 gave effect to those articles in domestic law by requiring public authorities (including the UKVI) to act in a way which is compatible with ECHR rights (s. 6 HRA 1998).

Following the HRA, when passing legislation the government is required to confirm that that legislation is compatible with the ECHR. If the courts find that the legislation is incompatible with the ECHR, they can make a declaration to that effect requiring Parliament to consider whether to take further action. (See Ullah and Do [2004], in which the House of Lords held that the Court of Appeal had gone too far in restricting the potential extent of human rights decisions in removal cases and stated that it was not for the British courts to be limiting the direction of travel of the ECHR.)

Other international treaties and obligations

Other international treaties, such as the Convention on the Rights of the Child, may also be relevant in particular cases.

European Community Law and EU agreements

Nationals of the European Economic Area and their families had previously benefitted from freedom of movement under European Union law (‘EU law’) expressed in Treaty articles, regulations, directives and case law from the Court of Justice of the European Union. EU law took precedence when there was a conflict with domestic law.

Following the UK’s decision to leave the EU in the July 2016 referendum, EU law no longer applies directly in an immigration context. Free movement provisions no longer apply.

Aside from EU law, there are also agreements between European partners on a number of immigration and asylum matters.

The role of an immigration solicitor

The work of an immigration solicitor can vary widely, from advising and representing high-level employees in multinational companies to assisting vulnerable clients seeking refuge from persecution. Firms may undertake both private and publicly funded work, or may specialise in one or the other. Firms may also specialise in particular aspects of immigration law – for example, a firm may deal exclusively with applications under the Points-Based System, but undertake no asylum work at all.

Immigration solicitors, like solicitors in all fields, operate under the professional supervision of the Solicitors Regulation Authority (SRA).

In addition, it is possible for advisers to operate outside the aegis of the SRA. This applies mainly to non-solicitors, who may choose instead to practise under the regulatory authority of a separate body: the Office of the Immigration Services Commissioner (OISC). The OISC was created by the Immigration and Asylum Act 1999. It monitors and regulates immigration advice given by those advisors it regulates; and it has fairly wide powers, including disciplinary action and criminal prosecution.

Immigration practitioners (whether solicitors supervised by the SRA or non-solicitors supervised by the OISC) who wish to undertake publicly funded work must have accreditation under a scheme operated by the Law Society and the Legal Aid Agency. To some extent, the Legal Aid Agency takes on an additional supervisory role, separate to that of the SRA or OISC.

Practitioners dealing with vulnerable groups such as victims of torture, unaccompanied minors, etc. need skills in dealing with such vulnerability as well as being able to advise accurately on the law.

All immigration practitioners need to be able to consider detailed evidence in particular cases; to evaluate how that evidence relates to the legal framework for the type of case at hand; and to be able to represent clients effectively in a potentially adversarial system.

Before 9 July 2012, Article 8 applications were assessed primarily with reference to case-law (as discussed above). The UKVI policy and guidance was (and still is) relevant. These were cases where an applicant could not satisfy the requirements of any of the immigration rules; so an Article 8 application was described as an ‘outside the immigration rules’ application (please see Chapter 5 for more details).

Since 9 July 2012, the immigration rules set out what requirements an applicant must satisfy in order to establish their Article 8 claim. The Home Office’s position is that the rules have been drafted in accordance with Article 8, and that therefore any decision under the rules will normally also be in accordance with Article 8.

According to the Statement of Intent to the immigration rules introduced on 9 July 2012:

…The new rules will reflect fully the factors which can weigh for or against an Article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government’s and Parliament’s view of how individual rights to respect for private or family life 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.

The advantage of this approach for the Home Office is that, rather than considering the complex, often subtle, and certainly voluminous, case law when making an Article 8 decision, case workers can in most cases ignore that and simply make a decision under the Rules.

The requirements for an Article 8 application are contained in the following places:

• Application on basis of family life: Paragraph EX.1 Appendix FM, IR.
• Application on basis of private life: Paragraph 276ADE onwards, IR.

‘Exceptional circumstances’

According to the UKVI if the applicant cannot satisfy the requirements under the Immigration Rules, they will not qualify for leave to remain outside the rules under Article 8, unless there are ‘exceptional’ circumstances.

The test of proportionality has been examined by the courts; and for some time the Tribunal adopted the view of Lord Bingham in Razgar [2004] UKHL 27 (‘Razgar’) which was that a case had to be found to be ‘truly exceptional’ in order to succeed.

This test was held to be incorrect by the House of Lords in Huang and Kashmiri v SSHD [2007] UKHL 11. (The Judgment actually says that the words ‘truly exceptional circumstances’ had not been intended to create a test; rather, they were simply stating that the vast majority of cases would come within the rules.)

Nevertheless, the Home Office’s position has remained that they only need consider Article 8, separately to the rules, in exceptional circumstances.

The Court of Appeal in MF (Nigeria) v SSHD (2013) EWCA Civ 1192 (‘MF’) re-affirmed that the new Immigration Rules do not restore the ’exceptionality’ test. MF clearly finds that the previous Strasbourg standards and principles in relation to article 8 still govern the ultimate disposal of these cases.

The Supreme Court revisited the meaning of ‘exceptional circumstances’ in Agyarko [2017] UKSC 11. In light of that judgment, we can rely on the following (at least for now):

• Appendix FM is compatible with Article 8.
• It is in the first instance for the Home Office to decide what ‘exceptional circumstances’ means.
• However, ultimately it is always a question of balancing the applicant’s interest in remaining in the UK with their family and the public interest to remove anyone who does not have valid leave.
• Mere inconvenience would not be enough.
• Having a mortgage in the UK, or a job or some ill relative is probably insufficient.
• The same goes in cases where removal would bring about economic hardship.
• Being British does not give a person the right to decide where their spouse should live.
• Love is less important that immigration control.

Statutory factors to be considered in a proportionality assessment

If there are exceptional circumstances, then a decision maker may go on to make a decision on Article 8 outside the rules. However, even that decision is now constrained.

The Immigration Act 2014 introduces a new part, Part 5A, to the Nationality, Immigration and Asylum Act 2002, which compels decision makers to take into account certain factors when conducting a proportionality assessment.

Part 5A sets out a list of general considerations (s.117B NIAA 2002) and additional factors in foreign criminal cases (s. 117C NIAA 2002).

Section 117B confirms a number of established principles; for example, that the maintenance of effective immigration control is in the public interest.

Additional emphasis is placed on the ability of individuals to speak English and to be financially independent, as it is considered that such persons are less of a burden on the tax payer and more likely to be able to integrate.

The status to be granted under Article 8

If an application is successful, the applicant will normally be granted leave to enter for 33 months (for an overseas application) or leave to remain for 30 months (for an in-country application).

However, they will only qualify for settlement (indefinite leave to remain) after 10 years.

By contrast, applicants who satisfy the requirements of the rules without having to rely on exceptional circumstances can apply for settlement after five years.

If an applicant is granted leave to enter or remain under the ‘10-year route’ they can switch into the ‘5-year route’ to settlement once they meet the relevant requirements. For example, they may not have met the rules because they had overstayed; that will now no longer be the case, and so they could now successfully apply under the rules.

Normally, a grant of leave under Article 8 will not allow access to public funds. However, it is possible to apply to waive that restriction in some cases (for example, in the best interests of children).