New Immigration Laws: Miaow!

The Home Office’s Statement of Intent: Family Migration (June 2012) sets out the Government’s plans to reduce the number of immigrants coming to the UK from outside the European Economic Area (and those staying here, especially if they have committed crimes), to be enacted in a revision of the Immigration Rules in July. It makes no reference to domestic pets, but includes a major change in the approach to the right to family and private life in Article 8 of the European Convention of Human Rights. The new rules, it is said, will expressly incorporate the requirements of Article 8 into the Immigration Rules. But much is left unexplained, in particular the role of the Judges in determining Article 8 appeals. The intention appears to be to stop Judges using their own discretion when they think that an official has made the wrong decision in an Article 8 case.

Since the Human Rights Act 1998 came into force, something like a parallel jurisdiction has evolved in Article 8 cases in immigration law (with echoes of the availability of remedies in equity where none existed at common law). An applicant who fails to comply with the requirements of the Immigration Rule that applies to her case may still succeed if she can show that she has formed a family or private life, and the state cannot prove that removal or a refusal to allow entry is justified and proportionate on public policy grounds. A large body of case law has grown up around the way in which ‘decision makers’, including judges, should look at Article 8. It was originally thought that it could only apply to claimants themselves, and not family members who would be affected by adverse decisions. That changed when the House of Lords ruled in Beoku-Betts v SSHD [2008] UKHL 39 that decision makers should take account of the impact of a person’s removal upon those sharing family life with him as well as its impact upon him directly. In the leading case of Huang [2007] UKHL 11 they held that there is no requirement for an appellant to prove exceptionality, although they thought that cases in which removal was otherwise lawful, but are found not to comply with Article 8, would be rare:

“…the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality.” [20]

They held that the task of a Tribunal considering an Article 8 appeal was ‘to decide for itself’ whether the challenged decision is unlawful as incompatible with a Convention right, or compatible and lawful. They referred at para. 18 to the State’s ‘negative duty to refrain from unjustified interference with a person’s right to respect for his or her family’ and also its ‘positive duty to show respect for it’; they went on to describe the ‘core value’ which Article 8 exists to protect:

“…Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant’s dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant. The Strasbourg court has repeatedly recognised the general right of states to control the entry and residence of non-nationals, and repeatedly acknowledged that the Convention confers no right on individuals or families to choose where they prefer to live. In most cases where the applicants complain of a violation of their article 8 rights, in a case where the impugned decision is authorised by law for a legitimate object and the interference (or lack of respect) is of sufficient seriousness to engage the operation of article 8, the crucial question is likely to be whether the interference (or lack of respect) complained of is proportionate to the legitimate end sought to be achieved. Proportionality is a subject of such importance as to require separate treatment.” (emphasis added)

The trend has been for the UK Courts, taking the lead from not only from the European Court of Human Rights in Strasbourg but also from decisions by the European Court, applying EU law, to make it easier for Article 8 claims to succeed, by emphasising the state’s ‘positive duty to show respect’ for family life. The welfare of children is pre-eminent in cases where a parent faces removal, and if a child’s welfare is likely to suffer, removal of the parent may be impossible. This applies across the board, notoriously to cases in which ‘foreign criminals’ (doubly bad!) rely on their family rights to avoid deportation.

The Home Secretary’s infamous ‘cat’ speech merely gave infelicitous expression to a view that too many people were being let in (and too many criminals were being allowed to stay) through Article 8, and that it was somehow an abuse. The Home Office now intend that the new Immigration Rules will supersede the separate consideration of claims under Article 8 in all but the most exceptional cases:

The new rules will reflect fully the factors which can weigh for or against an Article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government’s and Parliament’s view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis. [7]

What happens at present is that the Home Office (or Visa Officer or Entry Clearance Officer in an embassy abroad) will assess an application with family/private life elements under the relevant Immigration Rule, and then again under Article 8. The ‘refusal letter’ will typically set out both assessments. A failure to consider Article 8 at all will almost certainly cause a Tribunal to find that the decision was ‘not in accordance with the law’ for the purposes of Section 84(i)(f) of the Nationality Immigration & Asylum Act 2002, and new a decision will have to be taken – usually by the Tribunal itself.

So in a sense, the government is merely doing a tidying-up exercise, reuniting the Immigration Rules with the principles of Article 8 – so that ‘equity’ and ‘law’ are one in this area.

But Article 8 will not go away, and the extensive jurisprudence on it – from the Strasbourg and UK courts – will not go away either.  According to the Statement of Intent

This does not mean that the Secretary of State and Parliament have the only say on what is proportionate. The Courts have a very clear role in determining the proportionality of the requirements in the Immigration Rules. It is for the State to demonstrate that measures that interfere with private and family life are proportionate. But a system of rules setting out what is or is not proportionate, outside of exceptional circumstances, is compatible with individual rights, as has been accepted by the Courts in other spheres, e.g. housing law. Where the rules have explicitly taken into account proportionality, the role of the Courts should shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the rules. [37]

This is a puzzling statement. It suggests that the ‘Courts’ – including the Asylum and Immigration Tribunal? – will not look at whether ‘individual administrative decisions’ are proportionate in Article 8 terms. The experience of Immigration Judges is that sometimes those decisions are wrong because officials have failed to give due weight to matters that show that the proposed interference with Article 8 rights is disproportionate: for example, where the official failed to appreciate that in a relationship between adult family members there are exceptionally close emotional ties, and real, committed and effective personal support – enough to bring the relationship within the protection of Article 8. The government appear to think that only a challenge to the rules themselves will be possible. It is not the role of the Tribunal to ‘review the proportionality of the rules’ – whatever this means. If the rules themselves do not comply with the ECHR, that is a matter for the higher courts to consider. Hitherto, the Tribunal has been required to determine each case on its own facts, and has the duty to make its own findings of fact – including findings about whether an adverse Article 8 decision was ‘proportionate’. If the plan is to restrict the Tribunal’s independent fact-finding and its ability to reach its own decisions on proportionality, it is arguable that appellants would be deprived of an ‘effective remedy’ for breaches of their human rights – something guaranteed under Article 13 of the Convention.

It’s almost as if the Home Office don’t trust the Judges.

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About Francis FitzGibbon QC

I am a QC and member of Doughty Street Chambers, London (www.doughtystreet.co.uk). I practise criminal law. Please do not look for legal advice in this blog as you won't find any. The views expressed here are my own.
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