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).