Under the Immigration Rules, an Article 8 claim to stay in the UK must show that continuing family life outside of the UK would be “impossible.” But even if a person passes this test, they still have to pass another test to see if removal is fair. A key question is how much weight the test in the Immigration Rules has in this choice about what is fair.

At least, that was the case before the recent ruling in TZ (Pakistan) and PG (India) v Secretary of State for the Home Department [2018] EWCA Civ 1109. Now, the Court of Appeal has said that if Article 8 is involved and the Immigration Rules are met, this also means that removal is not fair. If a person meets the first Article 8 requirement, they don’t have to worry about the second.

Before TZ (Pakistan), the most important case was Mostafa v. Secretary of State for the Home Department, [2015] UKUT 112, a ruling from the Upper Tribunal. (IAC). In line 23 of that decision, the then-President McCloskey said that passing the test in the Immigration Rules was a big deal, but not the only thing that mattered.

Plainly this will mean that the underlying merits of an application and the ability to satisfy the Immigration Rules, although not the question before the Tribunal, may be capable of being a weighty factor in an appeal based on human rights but they will not be determinative. They will only become relevant if the interference is such as to engage Article 8(1) ECHR and a finding by the Tribunal that an appellant does satisfy the requirements of the rules will not necessarily lead to a finding that the decision to refuse entry clearance is disproportionate to the proper purpose of enforcing immigration control. However it may be capable of being a strong reason for allowing the appeal that must be weighed with the others facts in the case.

This means that the underlying grounds of an application and the ability to meet the Immigration Rules, which are not the question before the Tribunal, may be a weighty factor in an appeal based on human rights, but they will not be the deciding factor. They will only matter if the interference is big enough to violate Article 8(1) of the European Convention on Human Rights (ECHR), and even if the Tribunal finds that an appellant does meet the rules, that doesn’t mean that the decision to deny entry clearance is out of line with the right way to control immigration. But it could be a good reason to let the appeal through, which must be weighed against the other facts in the case.

Things change because of TZ (Pakistan). As the Court of Appeal said at paragraph 34, meeting the rule in the Immigration Rules is now a deciding factor in whether or not removal is unfair.

Where a person satisfies the Rules, whether or not by reference to an article 8 informed requirement, then this will be positively determinative of that person’s article 8 appeal, provided their case engages article 8(1), for the very reason that it would then be disproportionate for that person to be removed.

When a person meets the Rules, whether or not they do so by referring to an article 8 informed requirement, this will be a deciding factor in their article 8 appeal, as long as their case involves article 8(1). This is because it would be unfair to remove that person in that case.

This line of thinking seems to lead to two conclusions. The first result is that if a person meets the Article 8 test in the Rules, that will be the deciding factor in whether or not removal is unfair.

The second finding is that if an applicant meets the Immigration Rules in general, “whether or not by reference to an article 8 informed requirement,” that will be the end of their article 8 appeal because their removal would be unfair.

Instruct me:

If you want to instruct me, please email donm@queensparksolicitors.co.uk or queensparksolicitors@gmail.com or call us on 0203 643 7508 / 07446 888 377. My name is Atty Magsino of Queen’s Park Solicitors. I am a UK qualified lawyer and solicitor.