A decision to refuse a private life application and to require the person to leave the United Kingdom may nevertheless be a breach of Article 8. The factors to be considered when deciding whether there are such exceptional circumstances are laid out in the guidance. Experience suggests though that any such decisions will be left to the courts to determine under normal article 8 principles.
Where applications are refused, in cases where the applicant has previously received a Notice of Decision to remove, it may find it difficult to appeal the decision as no further appealable decision need be made. If the fresh claim procedure is not available, because they have not previously made an Asylum or human rights claim, a judicial review may be the only
remedy (unless the applicant can re-apply with better evidence).
In Ogundimu (Article 8-new rules) Nigeria  UKUT 60 (IAC), an Immigration Appeal against deportation, the first reported case considering the new rules-based approach to Article 8 private life, the Upper Tribunal followed an earlier decision made in respect of the new family life provisions, MF (Article 8 -new rules) Nigeria  UKUT 393 (IAC).
In MF, the Asylum and Immigration Tribunal concluded that the new rules weer not conclusive of the Article 8 issue; there were two questions for the Immigration Judge:
- a) Whether the decision is in accordance with the rules; and
- b) Whether it is accordance with the law as interpreted by the Senior Courts whose decision are binding.
The Immigration and Asylum (First-tier tribunal or Upper Tribunal) tribunal noted a number of respects in which the new rules apply test that simply do not exist under established Article 8 principles, or that have been disapproved of by the Courts. Looking specifically at the ‘no ties’ requirement in paragraph 276ADE (vi), the tribunal decided;
“The natural and ordinary meaning of the word ‘ties’ imports, we think, a concept involving something more than merely remote and abstract links to the country of proposed deportation or removal. It involves there being a continued connection to life in that country; something that ties a claimant to his or her country of origin….”We recognize that the text under the rules is an exacting one. Consideration of whether a person has ‘no ties’ to such country must involve a rounded assessment of all the relevant circumstances and is not to be limited to social, cultural and family circumstances. Nevertheless, we are satisfied that the appellant has no ties with Nigeria. He is a stranger to the country, the people, and the way of life. His father may have ties but they are not ties of the appellant or any ties that could result in support to the appellant in the event of his return there.