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Goodbye paragraph 395C?


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The cat gets it

Theresa May and David Cameron have promised to crack down on the perversion of human rights. May specifically stated that she wanted to amend the Immigration Rules to do so. Some of this is no doubt pure politics of the dogwhistle variety: it will not necessarily be followed by new policies or actual changes, but ministers want to be heard saying the ‘right’ thing.

It is difficult to take May seriously after Catgate. She cannot really be expected to check everything that is placed in front of her by her speech writers, but the pledge on changing the rules was unusually specific. I’ve been wondering what might follow, and my guess is that paragraph 395C will be scrapped. A Presenting Officer suggested to me that it might go the other day when we chatting before court, and this would perhaps arguably fulfil May’s promise.

The rule, very recently slightly amended, currently reads as follows:

395C. Before a decision to remove under section 10 of the Immigration and Asylum Act 1999 or section 47 of the Immigration, Asylum and Nationality Act 2006 is given, regard will be had to all the relevant factors known to the Secretary of State including:

(i) age;

(ii) length of residence in the United Kingdom;

(iii) strength of connections with the United Kingdom;

(iv) personal history, including character, conduct and employment record;

(v) domestic circumstances;

(vi) previous criminal record and the nature of any offence of which the person has been convicted;

(vii) compassionate circumstances;

(viii) any representations received on the person’s behalf.

In the case of family members, the factors listed in paragraphs 365-368 must also be taken into account.

The flaw is that, as you can see, the paragraph makes no mention whatsoever of human rights. Arguments under this rule have a completely different legal basis additional to and more generous than human rights arguments. I don’t think this sort of legal nicety will bother May and her speech writers, however. The arguments made under paragraph 395C are basically the same as made under Article 8 of the European Convention on Human Rights.

Paragraph 395C was a surprisingly generous addition to the rules when it was introduced in 2006 following the deportation debacle, and it also, by a legal quirk, gives huge discretion to immigration judges to make up their own mind about how to dispose of a case. That is the very last thing that the last two governments seem to want – allowing judges to judge cases on their merit under national and international law.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


2 Responses

  1. I don’t see what UKBA would gain by completely scrapping this rule: they could simply shorten the list and make it exhaustive. If they removed the rule they would be flooded with appeals the majority of which would possibly be allowed under Article 8 (I would imagine that the existence of 395C has allowed a number of people to stay without the need to go through the court). Such outcome would probably baffle May who will discover that Article 8 concerns both family and private life.
    In any case, I only hope nobody raises the issue of Article 3 and deportation….

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