As the third in a series of blog posts on the radical new July 2012 immigration rules we turn now to the Home Secretary’s attempt to “define” the right to family and private life under Article 8 of the European Convention on Human Rights, which is incorporated into our domestic law in the Human Rights Act 1998.

Article 8 reads:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

According to Theresa May, the absence in the Rules of any definition of the proportionality requirements under Article 8(2), has led to “unpredictability and inconsistency, which are anathema to good administration”.

This is not a long overdue expression of concern about the standard of UKBA decision-making. Rather, the stated purpose of the Home Secretary is to “shift” the role of the Courts from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the Rules. In effect, the Courts are to be required to apply the definition of proportionality within the Rules.

For decades domestic courts and the European Court of Human Rights have refrained from defining proportionality with any rigidity. So how has the Home Secretary fared in rising to the task?

Under the new Rules an individual can apply for leave to remain on the grounds of private and/or family life. An application form must be submitted unless for example he/she is in immigration detention and/or subject to removal directions.

The requirements for leave to remain under private life, under paragraph 276ADE of the Rules, include a condition of residence for a set period, dependent upon the age of the applicant: an adult applicant must have lived in the UK for at least 20 years or have no remaining ties in his country of origin; if under the age of 18 years, the requirement is at least 7 years; if over 18 but under 25 years, the individual must have lived in the UK for most of his life. This excludes many who have lived in the UK for years.

Even if an applicant can establish 20 years, he will only be granted an initial period of leave for 30 months and will not be entitled to indefinite leave to remain until he has accumulated 120 months’ of such leave. This creates a very long route to settlement under “Article 8”.

The 7 years’ requirement for those under 18 years is reminiscent of the 7 years’ concession for children, which was withdrawn by the Home Secretary because the protection afforded by Article 8 was considered to be sufficient. This is political backtracking. The Home Secretary is now acting inconsistently with the previous approach by attempting to define the circumstances where Article 8 protection should apply.

There is also a suggestion in the Rules that the Home Secretary can refuse an application even if the requirements for “private life” are satisfied: less weight will be attached to private life in the UK established following refusal of an earlier application for leave to remain under the same provisions. One is left wondering how much weight will be given to this. It risks uncertainty and inconsistency.

As for “family life” under the Rules, the provisions are contained in Appendix FM. They apply to those that have a family life with a person who is settled in the UK, a British citizen or limited leave as a refugee or person in need of humanitarian protection. So it does not cover everyone who might have established a family life and be in need of protection under Article 8.

There are financial and English language requirements, which one can see in the individual provisions for each category e.g. under spouses, children, other dependent relatives. However, whilst these requirements might be relevant on one view, there has never been a suggestion by the UK Courts that such requirements are in any way determinative of an Article 8 assessment.

Part 10 of the Immigration Rules “the General Grounds for Refusal” will not apply to family route cases. But this is not a sign of leniency. There are “suitability criteria” defined in the Rules, which effectively replicate the requirements under Part 10.

There are two exceptions to the application of the “family life” requirements, where: (i) the family life is with a child who has been in the UK for 7 years – again the 7 years Rule is re-introduced into the Immigration Rules – and “it would not be reasonable to expect the child to leave the UK”; (ii) the family life is with a partner who is a British citizen, settled person or person in need of international protection and there are insurmountable obstacles to family life continuing outside the UK.

As for Exception 1, the requirement of reasonableness is not defined. The Rules do not reflect the statutory duty to consider a child’s best interests under section 55 of the Borders, Citizenship and Immigration Act 2009, and the voluminous case law that has followed, most notably ZH (Tanzania) [2011] UKSC 4.

Under Exception 2, “insurmountable obstacles” is not defined either. In any event was found not to be the correct test in VW (Uganda) [2009] EWCA Civ 5, following the judgment of the House of Lords in EB (Kosovo) [2008] UKHL 41. The test is one of reasonableness. In Huang [2007] UKHL 11 it had been confirmed that there is no need to establish “exceptionality” in order to succeed under Article 8. The new Rules try to introduce these requirements.

The Rules and exceptions do not cover every conceivable case. In Chikwamba [2008] UKHL 40 it was held that Article 8 claims should generally be determined in-country (as confirmed recently in Hayat (Pakistan) [2012] EWCA Civ 1054) and this is irrespective of the circumstances of the case. Nor do the Rules reflect the principle in Beoku-Betts [2008] UKHL 39 that the Article 8 rights of the family unit as a whole must be considered. And the list goes on…

Therefore what is most concerning is that the Rules incorporate definitions of Article 8 considerations that the Courts have explicitly previously rejected.

The Home Secretary purports to “shift” the role of the Courts. But the courts have a constitutional role in our democracy. They have a duty to act in accordance with the European Convention on Human Rights, and therefore Article 8, under section 6 of the Human Rights Act 1998. Therefore, irrespective of Article 8 “under the Rules”, the courts must consider the compatibility of a decision (and the Rules) under Article 8 and should still apply the test in Razgar [2004] UKHL 27. There is also the statutory duty to consider a child’s best interests where children are involved, which the Rules simply do not mention at all.

This begs the question: what is point of the new Rules if the courts are required to consider Article 8 “under the Rules” as well as free-standing Article 8 rights? This will lead to unnecessary duplication. The Rules are detailed, rigid but do allow scope for discretion on the part of the Home Secretary. The changes merely compound the uncertainty and inconsistency they purport to address.

The unfortunate effect is to qualify a human right that is already qualified.