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New statutory human rights considerations take immediate effect


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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.

parliament logoCommencement

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:

117A Application of this Part

(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—

(a) breaches a person’s right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.

(2) In considering the public interest question, the court or tribunal must (in particular) have regard—

(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.

(3) In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).

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.

As we will see below, judges may be forced, whether they like it or not, to treat cases more generously than Home Office officials.

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:

117B Article 8: public interest considerations applicable in all cases

(1) The maintenance of effective immigration controls is in the public interest.

(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—

(a) are less of a burden on taxpayers, and

(b) are better able to integrate into society.

(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—

(a) are not a burden on taxpayers, and

(b) are better able to integrate into society.

(4) Little weight should be given to—

(a) a private life, or

(b) a relationship formed with a qualifying partner,

that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.

(6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom.

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”.

Deserted House On The Bishop's Avenue, North London by David Jones 大卫 琼斯, on Flickr
Deserted House On The Bishop’s Avenue, North London by David Jones 大卫 琼斯, on Flickr

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:

117C Article 8: additional considerations in cases involving foreign criminals

(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where—

(a) C has been lawfully resident in the United Kingdom for most of C’s life,

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.

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.

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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):

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


14 Responses

  1. I am not sure your bolded statment “In any case where there is a British citizen child or a child resident for seven years or more and the parent is in a “genuine and subsisting parental relationship”, there is no public interest in removal of the parent.” is entirely accurate. If it is accurate it would be a very significant advance in the rights of children, but unfortunately the ACT seems to me to involve a qualification to the effect that this is true ONLY where “(b)it would not be reasonable to expect the child to leave the United Kingdom”.

    While this will always be true of a British Citizen, it may well be an arguable point for children who have been here for more than 7 years but are not British. This would seem to reflect paragraph 276ADE(iv) of the Immigration rules…

  2. Alright, so if you can show it would not be reasonable to remove the child, then there is no public interest in removing the parent. I guess this gets round some problems with the current immigration rules (e.g, Appendix Fm is biased towards single parents). But otherwise you have a sort of paradoxical situation: the main reason why the Home Office says it is reasonable to remove such children is immigration control which we all know is deemed to be in the public interest. But, if it is not reasonable to remove them there is deemed to be no public interest…

    1. That just made my head hurt. So this is basically the catch-22 of immigration rules. By proving that there is no public interest, one also proves that there IS a public interest — Am I understanding that right?

  3. No doubt this will all be illuminated for us by judges in due course. Proving that it is not reasonable remove the child is usually a matter of proving that the child’s best interests etc outweigh the public interest in immigration control. What the new act says is that, if you can prove this, then magically there never was any public interest in the first place!

    This makes little practical difference, since you still have to prove what you were going to prove in the first place. But it does seem a bit odd.

  4. More practically, I wonder if this can be used to revisit the argument over granting parents of qualifying children ILR. If the Home Office is granting LLR, then they have conceded there is no public interest in their removal, so why is there any public interest in limiting their stay??

  5. Reduction ad absurdum: it is obviously unreasonable to remove a child whose appeal is pending, or to remove a child whose appeal has been decided but who has the opportunity to appeal further. Hence, by operation of statute, there is no public interest in removing the parent of a child who has an appeal pending or an opportunity to appeal further. Hence, when conducting the Article 8 balancing exercise in such an appeal, the parent will always be successful, simply because there is an appeal!

    1. ‘Public interest’= ‘legitimate aim’?,… still so many grey areas in my humble understanding to set the record straight. ‘Immigration control’ by itself, is it still construed as a ‘legitimate aim’ if not supported prevention of disorder/ economic well-being?…..aren’t decision of the UT ‘legally binding’ at least to itself and the FTT? ….i thought Shahzard ( Ar 8: Legitimate aim {2014} UKUT was going to set a new precedent,… i was wrong!

  6. Immigration control is a ‘legitimate aim’ because it is in the public interest (the Act makes this black letter law). When there is no public interest in removing someone, no legitimate aim is served by the removal, so as Colin says, you always win the proportionality exercise (although quite possible you win at step 4, since it isn’t “necessary in a democratic society”- quite apart from having won already at step 3 by virtue of Section 55!).

  7. Just noticed the S117C(3) says “four Years or more” (6) says “at least four years” am I correct in thinking that this is the same thing and is contradictory?

  8. i have three British born children two of whom are born of British born women and one from a Nigerian woman who has resided in the uk for over 18 years and i am facing deportation our son might also get caught in the cross fire as my case worker has been insinuating my son though he has never left the country and he is 7 years of age but he is not seen as British am i right in thinking that the case worker and the home office are being discriminatory ?

  9. What will then happen to application made on behalf of children before the 13th, December 2012 under the immigration rules s.276 ADE(iv) then in force. Before the rules were amended. Children who qualified under the old rules in their own right. Children who were born here in the UK. In weighing the proportionality exercise, will the tribunal still come to the conclusion that it is reasonable for them to accompany their parents back to their country of origin. What then become of the childrens’ entitlement to Leave to Remain ?