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Recent decision on the impact of the new immigration rules on the role of Article 8 in immigration cases

An area of some controversy has been the interpretation of Article 8 of the Convention in cases where an individual seeks to contest a deportation order. The difficulties in this area have been exacerbated by the Home Office introducing amendments to the immigration rules regarding the interpretation of Article 8.

In this case the applicant originated from Nigeria. He entered the UK illegally and claimed asylum. He then married a UK citizen who had a child from a previous relationship. Not long after the couple were married the applicant was convicted of committing criminal offences. As a result, a deportation order issued. The applicant sought to resist his deportation on article 8 grounds.

The arguments failed before the First Tier Tribunal. However the Upper Tribunal allowed his appeal. It considered the effect of the deportation upon the daughter. Decision makers must treat the best interests of the child as a primary consideration. It also made decisions regarding the rule changes, holding that the new rules did not amount to a ‘complete code’.

The Court of Appeal did not agree with the Upper Tribunal and held that the new rules did amount to a complete code. However the Court of Appeal noted that the Upper Tribunal had considered very carefully all the circumstances of the case. It was a finely balanced decision, but the Tribunal did not consider anything that was irrelevant and did not fail to consider anything that was relevant. Therefore, there was no reason for the court to interfere with the decision of the Upper Tribunal.

 

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Immigration & Asylum