June 12, 2014

Home Office human rights appeals

5 June 2014

Here is another example of changed attitude in human rights appeals by the Home Office Presetning Office (HOPO)’s policy regarding appeals against first instance judge (AIT) decisions. Its practice is changing now. It used to be very rare to lodge an appeal agint Judge’s decesion to alloow apela on human rights grounds.But, it apparently became standard practice to seek permission to appeal in some asylum allowed appeals and all or virtually all deportations cases. However, recently it appears to be standard practice for the Home Office to seek permission to appeal against any appeal that is allowed on human rights grounds, or at lest on human rights grounds only.

The more or less standard grounds are as follows:

Ground one: Making a material misdirection of law

1. It is respectfully submitted that the Tribunal has erred in law in its approach to the Article 8 assessment in this case.

2. MF Nigeria [20131 EWCA Civ 1192 confirms that the Immigration Rules are a complete code that form the starting point for the decision-maker. Any Article 8 assessment should only be made after consideration under these Rules. That was not done in this case. It is submitted that the Tribunal erred in law by not having regard to the Rules and that the subsequent proportionality assessment is unsustainable because of this omission.

3. Furthermore, it was made clear in Gulshan [2013] UKUT 00640 (IAC) that the Article 8 assessment shall only be carried out when there are compelling circumstances not recognised by these Rules. In this case the Tribunal did not identify such compelling circumstances and its findings are therefore unsustainable.

4. Gulshan also makes clear that at this stage an appeal should only be allowed where there axe exceptional circumstances. Nagre [2013] EWHC 720 Admin endorsed the Secretary of State’s guidance on the meaning of exceptional circumstances, namely ones where refusal would lead to an unjustifiably harsh outcome. In this case the Tribunal has not followed this approach and thereby has erred.

5. It is respectfully submitted that the Tribunal has failed to provide adequate reasons why the appellant’s circumstances are either compelling or exceptional. It is submitted that there is no reason why the appellant’s husband cannot hire care whilst the appellant returns to [country] to make the appropriate entry clearance application to return. It is submitted that the appellant and her husband can continue to maintain contact with each other via modem methods of communication and visits whilst she does so as they have been able to do so over many years.

6. It is submitted that bad the Tribunal taken these issues into consideration they would have found that the decision to remove is proportionate.

7. Permission to appeal is respectfully sought so that a fresh decision can be made in. regards to the human rights decision.

There is no ground two, incidentally. Permission is regularly granted.

It is irritating to see what is surely incorrect law being perpetuated. The idea that Gulshan creates some sort of legal threshold of compelling circumstances that must be passed before human rights can even be considered is obvious nonsense.
Observers of Home Office submissions may also be interested in the standard case law compilation relied on by some Presenting Officers. The inclusion of the ancient MG [2005] UKAIT 00113 case is a bit of a mystery as there has been an awful lot of legal water under the bridge since then. The only glaring omission that immediately springs to mind is the Supreme Court decision in Patel, which addresses precisely the interaction of the immigration rules and human rights grounds.