Immigration: Court of Appeal decision in MF (Nigeria) v SSHD [2013] EWCA Civ 1192 - Appeal Dismissed

One of our previous blogs (link to blog: /news/2013/02/immigration-blog-20213/) looked at the changes to the Immigration Rules made by the Government in July 2012 and their view that only in 'exceptional circumstances' would a decision to refuse an application under the Rules amount to a breach of Article 8 ECHR (right to a family/private life).

We explained that the Immigration Courts had responded to this in a number of reported decisions and, in particular, the case ofMF (Article 8 - new rules) Nigeria [2012] UKUT 0393 (IAC)which had challenged the Government's approach.  The Tribunal in MF (Nigeria) held that an immigration judge must start their determination of a 'human rights case' by deciding the case under the Immigration Rules including the Government's definition of Article 8.  However, if the case does not succeed under the rules then the judge must go on and decide the case under what we call 'real Article 8', as required by the Human Rights Act and the Convention.

Unsurprisingly, the Government appealed against the decision in MF (Nigeria), however the Court of Appeal has now issued their decision which has dismissed the Government's appeal.  The Court of Appeal did not agree with the Upper Tribunal's decision in its entirety, but arguably this is due to a concession made by the Government during the Court of Appeal hearing that the rules do not change the law.

It was therefore agreed that the new Immigration Rules for deportation do provide a 'complete code' for an individual's Article 8 rights (which was the position of the Government).  However, the rules do not change the substantive law relating to Article 8 proportionality assessments and do not create a legal test of exceptionality for succeeding where the rules are not met.  This means that the 'real Article 8' is still very much a part of the decision making process.  It is important to make sure that the use of the phrase 'exceptional circumstances' is given its correct meaning in relevant cases.

If you would like more information on what impact this decision may have on your own case, then please do not hesitate to contact a member of our Immigration Team.