Migrants who would otherwise have no legal right to remain in the UK can appeal against their removal on the basis of their human rights. Usually they rely on Article 8 of the European Convention on Human Rights, which protects the right to private and family life. Article 8 is an integral part of UK law thanks to the Human Rights Act 1998.

The law on Article 8 in immigration cases is not easy going. In a recent case update written for this blog my colleague, Darren Stevenson, observed that

the law is unnecessarily tortuous as regards the proper assessment of family life rights under Article 8… [and] this complexity detracts from the tribunal’s primary function, which is to resolve matters of fact.

Part of the reason for this complexity is Part 5A of the Nationality, Immigration and Asylum Act 2002, inserted by the Immigration Act 2014. As part of the government’s attempt to restrict the scope of the right to private and family life contained in Article 8, it sought to dictate to courts and tribunals how they should treat certain behaviour such as living in the UK unlawfully, claiming public funds, or being unable to speak English.

Legislation giving immigration judges instructions on deciding human rights appeals

During passage of the Immigration Bill 2014, the Joint Committee on Human Rights indicated that it was “uneasy” about the provisions and the “significant legislative trespass into the judicial function” they represented.

Why the concern? The provisions, at first blush, appeared to offend the constitutional principle of the separation of powers: the idea that the legislature that makes the law (Parliament), the executive responsible for formulating public policy to implement those laws (the government), and the judiciary responsible for applying and interpreting the laws (the courts) should all remain separate and that none of these three branches of the state should exercise the power of the other.

It is not acceptable in a constitutional democracy for state officials, who are required to govern subject to the law, to also be responsible for making, interpreting, and enforcing that law. If Parliament were to dictate to the courts how to resolve factual disputes between a private individual and the government this would clearly be contrary to the separation of powers. (For more information on this principle, see this House of Commons Research Paper).

To avoid any constitutional impropriety, whoever drafted the Immigration Act chose his/her words carefully. Human rights appeals involve a balancing exercise: on one side of the scales is the migrant’s private and family life; on the other side of the scales is the public interest in maintaining effective immigration control. Part 5A provides that, when carrying out this balancing exercise, courts and tribunals “must (in particular) have regard” to the considerations outlined in that part. The considerations are not exhaustive nor are they necessarily decisive. Thus legislative diktat was avoided. However it gives judges a significant steer by outlining how Parliament expects the judicial balancing exercise to be carried out in the majority of cases.

This, as noted by the House of Lords Constitution Committee at the time, is a “constitutional innovation”. It has resulted in the “tortuous complexity” alluded to earlier. The Supreme Court recently lamented that:

It is profoundly unsatisfactory that a set of provisions which was intended to provide clear guidelines to limit the scope for judicial evaluation should have led to such disagreement among some of the most experienced Upper Tribunal and Court of Appeal judges.

Instead of carrying out their primary fact finding function, immigration judges have been forced to pepper their judgements with copious paragraphs of legalese in order to demonstrate engagement with the statutory considerations, often resorting to semantic gymnastics in order to reconcile those considerations with the overriding requirement to decide cases in accordance with Article 8 and the Human Rights Act.

Yet, it is what we are stuck with. So what are the considerations judges must have regard to and what have the courts said about them?

The mandatory public interest considerations

Ability to speak English

117B(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

If you cannot speak English, the public interest in removing you is strengthened. However the converse is not true. If you can speak English, this is a neutral factor:

The subsections do not say that it is in the public interest that those who are able to speak English and are financially independent should remain in the UK. They say only that it is in the public interest that those who seek to remain in the UK should speak English and be financially independent; and the effect of the subsections is that, if claimants under article 8 do not speak English and/or are not financially independent, there is, for the two reasons given in almost identical terms in the subsections, a public interest which may help to justify the interference with their right to respect for their private or family life in the UK. In seeking to portray the strength of their private or family life by reference to all their circumstances, claimants may wish to highlight their ability to speak English and/or their financial independence; but the legitimate deployment of such factors in that context is to be contrasted with the erroneous further submission that the subsections propel a conclusion that, where those factors exist, there is a public interest in favour of the claims. (Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58)

According to the Upper Tribunal in AM (S.117B) [2015] UKUT 260 (IAC), only compliance with the language requirements of the Immigration Rules (i.e. passing a formal test at the appropriate level or having a degree taught in English) counts as “being able to speak English” for the purposes of this section. But this suggestion has not been repeated or adopted by the higher courts.

Financial independence

117B(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.

It was initially unclear what was meant by “financially independent”. The Court of Appeal suggested in the Rhuppiah case that this meant financially independent of anyone, including family members. However the Supreme Court has now clarified that this means financially independent of the state, i.e. the person is not in receipt of public funds.

As with an ability to speak English, financial independence is a neutral factor. It does not count positively in someone’s favour — whereas lack of financial independence is a factor in favour of removal.

Unlawful residence

117B(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.

A “qualifying partner” is a partner who is British or settled in the UK.

It is well established that if a relationship is formed at a time when a person is in the UK with no immigration status, this diminishes the weight to be attached to that relationship. A relevant enquiry in many human rights appeals is whether the British/settled person was aware of the unlawful status. The logic being that if both parties knew, they should not have formed an expectation of being able to remain together in the UK. It is slightly different if the British/settled person didn’t know, as in such a case they would have formed an expectation of being able to remain together.

A more significant factor is if the migrant themselves did not know (as sometimes happens due to the complexity of the UK’s immigration laws). None of this nuance is reflected within the provision. However, as recognised by the Supreme Court in Rhuppiah, “[i]nbuilt into the concept of “little weight” itself is a small degree of flexibility”. This flexibility allows courts and tribunals, in appropriate cases, to deviate from the usual position of attributing only “little weight” to private and family life.

Precarious status

117B(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.

Until recently, no-one quite knew what this meant. However the Supreme Court has now clarified that anything short of indefinite leave to remain is “precarious” immigration status (see here for the Free Movement write-up of the case). Determining whether a person’s status is precarious should not “depend upon a subtle evaluation of the overall circumstances”. Instead a “bright-line interpretation of the word ‘precarious’ in section 117B(5)” is preferred as it “is linguistically and teleologically legitimate” and consistent with previous case law at the UK and Strasbourg level.

However, as above, there is inbuilt flexibility. The Supreme Court acknowledged that:

…the provisions of section 117B cannot put decision-makers in a strait-jacket which constrains them to determine claims under article 8 inconsistently with the article itself. Inbuilt into the concept of “little weight” itself is a small degree of flexibility; but it is in particular section 117A(2)(a) which provides the limited degree of flexibility recognised to be necessary in para 36 above. Although this court today defines a precarious immigration status for the purpose of section 117B(5) with a width from which most applicants who rely on their private life under article 8 will be unable to escape, section 117A(2)(a) necessarily enables their applications occasionally to succeed. It is impossible to improve on how, in inevitably general terms, Sales LJ in his judgment described the effect of section 117A(2)(a) as follows:

’53… Although a court or tribunal should have regard to the consideration that little weight should be given to private life established in [the specified] circumstances, it is possible without violence to the language to say that such generalised normative guidance may be overridden in an exceptional case by particularly strong features of the private life in question…’

As such there is still scope for arguing that private life formed whilst the person’s status was precarious should actually be afforded great weight. However, an “exceptional case” is required. Convincing a judge that a case is exceptional is no easy task!

Children

117B(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

A “qualifying child” is a child who is British or who has lived in the UK for seven years. This is the statutory manifestation of the ‘seven year rule’ which started life as a policy, was later incorporated into the Immigration Rules, and is now contained in this primary legislation.

As noted by the Upper Tribunal in Treebhawon [2017] UKUT 13 (IAC), this provision “differs markedly” from the other provisions of Part 5A:

In enacting Section 117B(6), Parliament has given effect to a public interest of an altogether different species. Notably, this new statutory provision is closely related to and harmonious with what has been decided by the Upper Tribunal in a number of cases, namely that there is a free standing public interest in children being reared within a stable and secure family unit.

This is the only provision of Part 5A which can apply in a migrant’s favour. Where the conditions outlined are satisfied, there is no public interest in removal.

A biological relationship with a child is insufficient. There must also be some element of direct parental care in order to establish the four discrete elements of the provision:

1. a relationship with the child;
2. which is “parental”, rather than of some other kind;
3. which is “genuine”; and
4. which is “subsisting” (i.e. ongoing).

Contrary to the Home Office’s suggestion in its guidance, this provision “cannot be ignored or glossed over” and is “self-evidently” engaged “whether the child will or will not in fact or practice leave the UK. It addresses the normative and straightforward question – should the child be ‘expected to leave’ the UK?” See SR (subsisting parental relationship – s117B(6)) Pakistan 2018 UKUT 3345 (IAC), and the Free Movement write-up of the case.

In relation to the reasonableness assessment, the Supreme Court has held in KO (Nigeria) [2018] UKSC 53 that this is “directed solely to the position of the child”. In other words, the conduct of the parent is irrelevant to the assessment of the impact on the child.

However the immigration history of the parents may be “indirectly material”. Before embarking on consideration of whether it would be reasonable for the child to leave the UK, one must ask “Why would the child be expected to leave the UK?” If the answer is that the parents have no right to remain in the UK then the Supreme Court says that this is “inevitably relevant” to the reasonableness assessment. The “ultimate question” is “would it be reasonable to expect the child to follow the parent with no right to remain to the country of origin?”.

Deportation 

There are further considerations which judges must have regard to in deportation cases only. These are not covered in this post however they are covered in detail in this Free Movement briefing from July 2017 and in the online deportation law training course available to members.

Conclusion

This “unhappy drafting” (in the words of the Supreme Court) which “wins no literary prizes” (in the words of the Upper Tribunal) has required years of litigation and two Supreme Court judgments to determine what judges are actually required to do when deciding human rights appeals. The Home Office’s own view of what the provisions mean has changed over time, which doesn’t help.

Although frustrating, this complexity is not surprising. It is a result of the government attempting to restrict people’s rights without repealing the Human Right Act 1998. That Act requires subsequent legislation to be read and given effect in a way which is compatible with human rights. Although free to do so, Parliament has not repealed this Act (the government has never been confident they could secure a majority in favour of doing so).

As such, the provisions of the Immigration Act 2014 could only ever go so far. Unless and until Parliament repeals the Human Rights Act the government is bound to act compatibly with human rights; whether they like it or not! Ministers can blame Strasbourg all they want when condemning human rights in the press; however in reality it is the UK’s much adored, sovereign, Westminster Parliament that has decided (rightly in my view) that human rights should be part of UK law.

No doubt once the Brexit process has been completed the Conservative party (if they survive in Government) will once again turn their attention to repealing the Human Right Act. There is likely to be considerable popular support for repeal — at least initially. However, much like Brexit, once repeal of the Act becomes a reality, and the loss of rights this would entail for all UK residents is confronted (see RightsInfo.org for great explainers of the rights we would all lose), people may begin to question whether it is such a good idea after all.