The Immigration Act 2014 requires judges to take into account certain public interest considerations when deciding immigration cases. Little weight is to be attached to x, the politicians tell the judges through the medium of the legislation, and in y situation there is no public interest in removal. More specifically, judges are instructed that there is less public interest in removing wealthy English speakers than poor Urdu speakers.

Human rights pervade modern law and have a profound impact in crime, family, mental health, environmental and many other areas of law. It is only in immigration law that politicians have sought directly to influence the thinking of judges, though. There is no primary legislation telling judges to sentence more leniently where a convicted criminal speaks English or has lots of money, for example, or telling judges that fathers with certain characteristics have stronger rights to see their children than other sorts of fathers.

Late last month the primary legislation concerned came into full effect. How does it work, and will it achieve its purported objectives? This is a detailed blog post examining the provisions and it is accompanied by an audio extract from a seminar last night at Garden Court Chambers at which I spoke on this subject (if you listen to podcasts on your mobile phone, you can subscribe for free via iTunes here, Stitcher here or point your podcast player to podcast feed for Free Movement). Other extracts from the seminar by Bijan Hoshi, Sadat Sayeed and Mark Symes will follow in upcoming blog posts.

Commencement

Section 19 of the Immigration Act 2014 inserts a new Part 5A into the Nationality, Immigration and Asylum Act 2002. This new Part sets out certain mandatory public interest considerations in immigration and deportation cases. The Immigration Act 2014 (Commencement No. 1, Transitory and Saving Provisions) Order 2014 (SI 2014/1820) brought into effect several sections of the Immigration Act 2014 on 28 July 2014, including section 19. The terms of commencement are simply that

The day appointed for the coming into force of the following provisions of the Act is 28th July 2014

There are no other commencement or transitional provisions. Looking at the text of the new Part 5A it therefore seems to take effect immediately, even in extant appeals already before the immigration tribunal. The critical words in this respect are at s.117A, where it states that Part 5A “applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life under Article 8”. In any current human rights appeal in which Article 8 is raised, no matter when that appeal was lodged, the court or tribunal will be facing exactly that question and the rest of Part 5A therefore applies.

The full text of s.117A is as follows:

Having regard

It can be seen that the new s.117A states that courts and tribunals ‘must have regard to’ the various considerations.

It is not the first time the politicians have attempted to meddle with decision making by judges in immigration cases. The bogeyman of vogue last time around was the bogus asylum seeker, not the foreign criminal, and the Home Secretary was David Blunkett, not Theresa May.

Section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 concerned credibility findings in asylum cases. It instructed Home Office officials and judges alike in how to assess the truthfulness or otherwise of witnesses:

In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant’s credibility, of any behaviour to which this section applies.

Unlike Part 5A, though, section 8 applied to Home Office decision makers as well as judges. Part 5A only applies to judges. Home Office officials are under no duty to follow the scheme of Part 5A but judges are. As we will see below, judges may be forced, whether they like it or not, to treat cases more generously than Home Office officials. Short of further primary legislation, there is nothing the Home Office can do about that now.

The ‘have regard’ duty in s.117A is a mandatory one but as with its ignominious forebear it stops short of requiring judges to make certain findings. In fact, it stops even further short than section 8 ever did, as no similar steer is given in the new Part 5A regarding the outcome of the judge’s consideration of the factors stated to be relevant.

The Court of Appeal dealt with section 8 in the case of JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878. Lord Justice Pill, giving the leading judgment, held that section 8 did not offend against constitutional principles:

The section 8 factors shall be taken into account in assessing credibility, and are capable of damaging it, but the section does not dictate that relevant damage to credibility inevitably results. Telling lies does damage credibility and the wording was adopted, probably with that in mind, by way of explanation. However, it is the “behaviour” of which “account” shall be taken and, in context, the qualifying word “potentially” can be read into an explanatory clause which reads: “as damaging the claimant’s credibility”. Alternatively, the explanatory clause may be read as: “when assessing any damage to the claimant’s credibility”. The form of the sub-section and Parliament’s assumed regard for the principle of legality permit that construction.

Section 8 can thus be construed as not offending against constitutional principles. It is no more than a reminder to fact-finding tribunals that conduct coming within the categories stated in section 8 shall be taken into account in assessing credibility. If there was a tendency for tribunals simply to ignore these matters when assessing credibility, they were in error. It is necessary to take account of them. However, at one end of the spectrum, there may, unusually, be cases in which conduct of the kind identified in section 8 is held to carry no weight at all in the overall assessment of credibility on the particular facts. I do not consider the section prevents that finding in an appropriate case. Subject to that, I respectfully agree with Baroness Scotland’s assessment, when introducing the Bill, of the effect of section 8. Where section 8 matters are held to be entitled to some weight, the weight to be given to them is entirely a matter for the fact-finder.

It might be anticipated that a similar approach will be followed by the tribunals and courts as regards Part 5A. Of course judges must ‘have regard’ to the considerations set out in the new Part 5A, and to fail to do so would be an error of law. Having had regard, though, judges remain free to reach their own conclusions about a case.

Considerations in all cases

The substance of the new considerations are set out at new sections 117B and 117C. The first of these, 117B, deals with considerations said to be applicable in all cases:

Some terms are subject to definition at section 117D, including:

“qualifying child” means a person who is under the age of 18 and who—
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more;

“qualifying partner” means a partner who—
(a) is a British citizen, or
(b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 — see section 33(2A) of that Act).

The mischievous might note that Tier 1 migrants are not required to speak English, which arguably rather undermines the supposed universality of the principle at s.117B(2). And some might say that the not all those who are “financially independent” are “better able to integrate into society”.

Subsections 117B(4) and (5) are arguably inconsistent with the Supreme Court decision in Quila [2011] UKSC 45: Lord Wilson at paragraphs 42 and 43 specifically disavows and declines to follow the case of Abdulaziz v United Kingdom (1985) 7 EHRR 471 on the proposition that Article 8 imposes no general obligation on a state to facilitate the choice made by a married couple to reside in it.

Very interestingly, subsection 117B(6) is arguably more generous than the Home Office’s own pre-existing human rights Immigration Rules dating from 9 July 2012. For example, those who speak English and are financially independent arguably have a stronger case under Part 5A than they would have done before. Further, in any case where there is a British citizen child or a child resident for seven years or more, the parent is in a “genuine and subsisting parental relationship” and it not reasonable to expect the child to leave the UK, there is no public interest in removal of the parent. Any such case should therefore always succeed because, in a proportionality balancing exercise, one side of the scales is stated by Act of Parliament to be empty.

Considerations in deportation cases

The second set of considerations, at 117C, applies only in foreign criminal cases, primarily deportation cases:

It is good that our Parliamentarians have so little to concern themselves with that subsections (1) and (2) have been enacted. “Trite” does not really begin to describe them.

Subsections (4), (5) and (6) are more interesting. They are arguably more generous than the deportation immigration rules introduced on 9 July 2012.

The “exceptional circumstances” wording previous deployed in the rules is replaced with a more anodyne “very compelling circumstances”. This may well be a difference without a distinction, but it removes reference to the legally controversial concept of exceptionality. Does it render the considerable judicial learning expended on Immigration Rule paragraph 398 in cases such as MF (Nigeria) “desert air“? We will find out in due course, no doubt. Yet more expensive litigation will be needed to decide.

The bizarre “hard law” residence benchmarks of 20 years for those over 25 and ‘half of life’ for those under 25 are replaced with a more evaluative approach at subsection (4). These new criteria are still impossible to achieve for many, of course, but are at least a little less arbitrary than before.

Under the 9 July 2012 rules, a foreign criminal seeking to resist deportation on the basis of relationship with a child had to meet the paragraph 399(a)(ii)(a) test of “it would not be reasonable for the child to leave the UK”. That is replaced with a test of whether the parental relationship with the child is genuine and subsisting and whether the effect of the person’s deportation on the child would be unduly harsh.

Is this a stricter test or a more generous one, or it is a further example of a difference without distinction? The emphasis certainly shifts from whether the child can relocate to the overall impact on the child irrespective of whether the child will relocate. The “unduly harsh” test would appear more obviously incompatible with a best interests approach to child welfare, though, which at least could be read into the old reasonableness test.

For those seeking to resist deportation on the basis of a relationship with a partner, subsection (5) is considerably more generous than the test under the 9 July 2012 rules. The old rules required the person facing deportation to have resided continuously and lawfully in the UK for 15 years and for there to be insurmountable obstacles to family life continuing outside the UK. Subsection (5) simply requires a genuine and subsisting relationship and that the effect of deportation on the partner would be unduly harsh.

EEA cases

As things stand, Part 5A of the 2002 Act does not apply in EEA cases. This is because appeals in EEA cases are dealt with under the Immigration (European Economic Area) Regulations 2006 as (heavily) amended and only certain sections of the 2002 Act are imported for EEA appeals. Despite a recent amendment to the regulations, they do not currently import the sections of Part 5A, which therefore has no application in EEA cases.

Conflict between the Act and the rules

As previously reported, the Immigration Rules were amended on 28 July 2014 by Statement of Changes HC 532 at the same time that the new Part 5A came into effect. Interestingly, the amended rules cannot apply to an outstanding appeal against a decision made under the old rules, but Part 5A does apply. Go figure.

The amended rules do not accurately reflect the effect of Part 5A, however: the Act is actually more generous than the rules. Given that the Act is primary legislation, the Act should obviously take precedence if there is a conflict. If so, judges will need to apply the more generous approach in the primary legislation while Home Office officials will be under no such obligation and will presumably stick to the scheme of the Immigration Rules.

For example, in the amended exceptions to deportation in the rules, paragraph 399(b) requires of a person relying on a relationship with a spouse or partner to resist deportation that:

(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and

(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and

(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.

If we compare this against s.117C(5), there is no justification for importing the “insurmountable obstacles” test via reference to EX.2. of Appendix FM, which provides:

For the purposes of paragraph EX.1.(b) “insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.

The only test in s.117C(5) is one of undue harshness, which in terms of ordinary language seems less onerous than insurmountable obstacles, i.e. obstacles which literally cannot be surmounted. Further, s.117B(4) only states that “little weight” should be attached to a relationship formed when a person’s status was precarious, not that this is a disqualifying feature to a case as is suggested by paragraph 399(b)(i) of the rules.

Similarly, EX.1. requires “insurmountable obstacles” to a partner joining the foreign national abroad. Section 117C(4), which only applies in cases of criminality, only requires that an “unduly harsh” test is met. This certainly sounds more generous, but how can it be right that a more generous approach applies to relationships with foreign criminals as opposed to non criminals? This makes no sense.

The Home Office may well come to regret setting out human rights considerations in primary legislation that cannot easily be changed and which states that there is no public interest in removal in certain circumstances.

To claim CPD points for reading this post, take the updated Free Movement online course on Article 8 and the Immigration Rules, available for full Free Movement Members. The Immigration Act 2014 ebook has also been updated with the information in this blog post and is available for purchase (£1 for Free Movement Members in the Members Area, as are the other Free Movement ebooks on Surinder Singh and challenging family visit visa refusals):